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This article was published on May 7th, 2021
The pandemic has thrown many employers and employees into a world of turmoil, however, as light begins to shine at the end of the tunnel as the vaccine program rolls out, we look at whether a ‘no jab, no job’ policy relating to employees receiving a vaccine is enforceable by your employer.
Amir Khan from our Employment Law and HR team recently appeared on Silk 106.9 to discuss the concerns surrounding no jab no job policies and more.
You can listen back below.
According to Lord Chancellor Robert Buckland, who spoke to the BBC about the issue, there may be situations where employers will be able to enforce a policy requiring employees to be vaccinated.
However, it will not be a blanket application for all employers.
The key points raised in Lord Buckland’s interview surrounded contracts both new and existing and whether a ‘no jab, no job’ policy was stated in the terms of employment.
The type of contract and the type of employment would also need to be taken into account.
Lord Buckland explained that at present it is unlikely that existing contracts of employment would include any clauses that would enable employers to enforce a mandatory vaccination of all staff, but he also explained that new contracts for new employees could see so-called ‘no jab, no job’ policies clauses included.
This area of employment law will develop over the coming months, with more detail and guidance being provided around the issue, however, some employers are already introducing vaccination policies.
Care UK, one of the UK’s largest care home operators with over 10,500 staff, now insist that all new employees must be vaccinated, with Care UK joining Barchester Healthcare and Pimlico Plumbers in including such clauses in new employee contract for new starters.
As the vaccine rollout continues, face masks have become one of the key tools in the world’s efforts to stem the spread of COVID-19.
Wearing one has become mandatory in order to gain access to shops and other indoor areas during the pandemic unless you are exempt due to medical reasons, but can employers force you to wear a face mask during working hours?
A recent case, Kubilius v Kent Foods Ltd has highlighted that it is possible for an employee to be dismissed for not wearing a face mask, however, it will be viewed by the courts on a case by case basis.
On no jab no job policies we need to look at the practical considerations with the relevant law that is in place that governs Employment matters.
As an employer, you may wish to make job offers conditional on a candidate proving that they have been vaccinated. However, it is going to be highly dependent on the practical considerations for individual employers and the risks of discrimination claims.
At present such a condition is likely to cause practical problems given that most candidates under 55 will not have been offered a jab. Unless vaccine ‘passports’ are introduced, providing evidence is also problematic as proof of vaccination is not yet consistently provided. There will also be data protection considerations in relation to processing and retaining this data.
You may also wish to change existing contracts, to introduce a requirement to be vaccinated. To do this you would need to consider all the usual considerations concerning changes to terms and conditions.
The safest way to proceed would be by way of consultation with employees and an agreed change. However, if agreement cannot be achieved, or if there are some who refuse to agree, an employer will either have to impose the change (with the risk of constructive unfair dismissal claims) or dismiss and re-engage (with the risk of actual unfair dismissal claims). Employees can also ‘stand and sue’ i.e. by continuing to work under the new terms under protest and bringing an unfair dismissal claim.
In relation to the Health and Safety at work legislation, a dut is indeed placed upon the employer to safeguard employees in the work premises and control the risk of harm etc. However, both the current government guidance for operating different sectors and guidance from the Health and Safety Executive (HSE), continues to recommend wider measures for making workplaces ‘Covid secure’. These measures do not include compulsory vaccination, with the HSE’s emphasis on risk assessments.
There are also Human Rights consideration to take into account such as breach of Article 8 of the European Convention of Human Rights (ECHR) (the right to respect for one’s privacy and family life) and Article 9 (the right to freedom of thought, conscience and religion). However, there has been case law that ventures towards an employer being able to interfere with an employee’s private rights where it was necessary in the interests of public safety.
In terms of European Law, the UK is still a signatory and there was a regulation passed in January of this year by the Council of Europe, where members are asked to “ensure that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially, or otherwise pressured to get themselves vaccinated if they do not wish to do so”. Paragraph 7.3.2 calls on states to “ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated” Although the resolution is not binding on UK courts, an Employment Tribunal may look at this Resolution as evidence given that this is the view of a body that governs European Human Rights.
Overall, given the risks and potential pitfalls for employers, the most straightforward approach would be to encourage rather than compel employees to be vaccinated. Allowing employees to make their own informed decision is likely to be preferable through Informing and consulting with them about the benefits of vaccination. Further encouragement could be given, as suggested by ACAS guidance, through offering paid time off for the Vaccine.
This is a very complex area of law, however, our team can help advise you on the best cause of action and how to ensure you and your business remains protected if you are an employer in addition to advising you on your rights if you are an employee.
To speak to a member of our Employment Law & HR team, please call 01625 507 506