We recently asked our LinkedIn network what their views were on employers introducing no jab, no job policies. There were mixed opinions and 74% of voters didn’t think they were a good idea, if you’re interested, you can view our poll here.
These policies are something that organisations such as Pimlico Plumbers and Care UK have already adopted for new starters, but is this allowed or are businesses opening themselves up for potential claims?
Are they allowed?
Justice Secretary Robert Buckland confirmed that it is possible, in theory, to introduce a policy where employers can hire staff only if they have had the vaccine, this must be properly documented and included as a term of their employment.
While this sounds straightforward, it is something that must be considered in relation to each particular contract and there must be a clear rationale behind the policy. So, while such a policy may be appropriate for employees dealing with vulnerable people as part of their day-to-day job, it would be much more difficult to find a clear rationale in implementing the policy for office-based staff.
Discrimination claims
While it may be possible to implement the policy, employers will need to be mindful that if they refuse to hire someone because they haven’t been vaccinated, they could be opening themselves up to potential discrimination claims depending on the applicant’s reason for not being vaccinated. This could include:
- Age discrimination claims in cases where the vaccine has not yet been rolled out to younger age groups;
- Pregnancy related discrimination claims;
- Discrimination in relation to religion or belief; or
- Disability discrimination if an applicant has not been vaccinated due to another underlying health condition.
In cases where an employer is rejecting an application because an applicant has not been vaccinated, it will be important to understand why they have not been vaccinated in order to reduce the risk of any discrimination claims being brought against them.
Existing employees
Whereas a no jab, no job policy could be incorporated into the employment terms for new staff, it is unlikely to be something that can be easily rolled out to current employees. There are a number of issues that need to be considered.
Can vaccination be introduced as a contractual term for existing employees?
If an employer wanted to introduce the requirement for vaccination as a contractual term, this would be a variation of the employees’ contract and staff would need to be incentivised to agree to this. If an employee refuses to agree to the change of terms, the employer will need consider what the alternative would be, this again could put them at risk of discrimination claims, or if it is an employee with over two years services, they may be able to bring an unfair dismissal claim.
If the employer is instructing employees to get the vaccines and an employee refuses could this be sufficient grounds for disciplinary action?
Whether or not disciplinary action can be brought will depend on whether it is reasonable for the employer to instruct an employee to get the vaccine. There is an implied term in all employment contracts that the employee will follow reasonable instructions from their employer, so the important question here is whether this is reasonable. This will be largely dependent on the nature of the job. If an employee frequently travels abroad as part of their role, it may be reasonable for them to require vaccination, particularly if they are travelling to countries where vaccination passports are being introduced. In which case, it may be possible to justify disciplinary action and possibly dismissal.
Unfair dismissal claims
If an employee is subsequently dismissed because they haven’t had the vaccine, they may be able to bring an unfair dismissal claim. Given the risk, employers would need to be careful in recording the events leading up to any dismissal and proving that any disciplinary action or subsequent dismissal was reasonable.
Whether or not it would be reasonable to discipline or dismiss someone for refusing the vaccine is something that is yet to be established and it would be dependent on the specific facts of each case. Given the uncertainty, it’s probably best avoided!
Alternative options
It is obvious that employers are going to need to tread carefully in relation to any “No jab, no job” policies and consider whether such a policy is appropriate or required.
A sensible approach would be to make sure that your employees are properly educated on the vaccine, this may help encourage them to get vaccinated and avoid the need for such a policy.
Employers do have an obligation to protect the health and safety of their employees, so, if an employee refuses to get vaccinated, it is important to consider this as part of a risk assessment when returning to the workplace. An employer should consider if there are any alternative options that can be implemented to mitigate any health and safety risks, this could include some employees working from home on a more permanent basis if they were to refuse the jab.
If you’re looking for advice as an employer or employee, click here for ways to get in touch with us.