As an Employer, can I enforce my Employees to have COVID-19 Vaccinations?

NO JAB – NO JOB!!!

Latest updates in relation to the NO JAB, NO JOB saga in the UK, It may be legal for companies to insist on new Employees being vaccinated as a condition of their employment, the justice secretary has now stated.

In a statement, Robert Buckland said it was unlikely bosses could make existing Employees have vaccines under their current terms in their existing contracts. In agreement, the Government has confirmed it would be “discriminatory” to order people to be vaccinated to keep their job.

But some companies, and this has been well publicised by Charlie Mullins from Pimlico Plumbers say they will not hire new staff who refuse to have the jab.

In an interview with ITV on Wednesday 17 February 2021, Mr Buckland said “compelling new staff to be inoculated could, in theory, be possible if it was written into their contracts”.

He followed this by saying, “Employers would probably need to take legal action if existing staff refused such an order”, “I think that has to be the case because we’re dealing with existing terms of contracts of employment, thousands of existing contracts. He added that the legality of “no jab, no job” would depend “very much on the terms of employment and the particular contract”.

“Generally speaking, I’d be surprised if there were contracts of employment existing now that did make that approach lawful. I think frankly the issue would have to be tested.”

 

What are our views on the whole NO JAB NO JOB?

 

Director and Founder Fran Crossland here at HR and You Ltd, our latest stance is that, legally there is nothing to prevent a Business from adding a ‘no jab, no job’ clause into contracts of employment for new recruits.

It would cautionary and Employers would need to assess each job role on its merits and evaluate the health and safety implications and risks prior to introducing and such clause into the contract of employment.

Let us say an Employer failed to take that action, the contract could possibly be challenged as being unfair or discriminatory, this may be due to the claimant being able to prove they are unable to access the vaccine or are exempt from having the vaccine.

It is also now widely publicised that there are concerns, that “no jab, no job” policies would disproportionately affect younger individuals as these are the last to receive the vaccine.

We are aware that at the moment there is much speculation, Employers do need to err on the side of caution, cases have not been tested in tribunal, cases will presumably be challenged, we would urge Employers embarking on any ‘NO JAB, NO JOB’ approach to seek HR professional support.

 

 

Why are individuals concerned?

 

We are now seeing progress with the focus most certainly being placed upon the well-publicised vaccine FOR covid-19 rollout across the UK.

For some this may be great news, but many have shown deep concern in relation to the associated risks, this is due to many factors.

  • The timeframes and the lack of data from the trials;
  • The MRNA vaccine is a newer type to be released, raising with it;
  • Genuine fear and concern.

 

We have already experienced a large volume of enquiries in relation to vaccinations of Employees and whether they can be enforced or not, this contact has been from both Employers and Employees.

It is safe to say that whilst the UK continues to rollout the vaccination programme Employers will have Employees who do not want or refuse to have the vaccine.

In this situation we look at the implications for you the Employer.

 

As an Employer can you force your Employees to take the COVID-19 vaccination?

 

The short answer to this is NO – an Employer cannot force their Employees to have the COVID-19 vaccination and there is no legal right under which an Employer has the power to do so.

It is worth noting that all Employers have a duty to alleviate the risk of harm within the place of work under the Health and Safety at Work Act 1974, as such all Employers must complete and demonstrate this within an up-to-date Covid-19 risk assessment.

It is always important to review your risk assessments and policies that you have in place and by doing so may alleviate many of the genuine fears and encourage your Employees to be vaccinated.

Whilst Employers may find the temptation to add contractual clauses for their Employees, we would advise against this, as it stands, we are in uncharted waters our advice would be to take a softer approach, to support your Employees and listen to their concerns.

It may be that Employees have concerns about taking the time away from work to have the vaccination, in this instance you could communicate how you plan for them to take the time and whether you plan to pay them for the time.

We would always advise an open and honest dialogue as this may encourage but not force Employees to take the vaccination.

 

What about new Employees, can we add a clause into new contracts of employment to enforce the jab?

Director and Founder Fran Crossland here at HR and You Ltd, as of 19 February 2021, our latest stance is that, legally there is nothing to prevent a Business from adding a ‘no jab, no job’ clause into contracts of employment for new recruits.

It would cautionary and Employers would need to assess each job role on its merits and evaluate the health and safety implications and risks prior to introducing and such clause into the contract of employment.

Let us say an Employer failed to take that action, the contract could possibly be challenged as being unfair or discriminatory, this may be due to the claimant being able to prove they are unable to access the vaccine or are exempt from having the vaccine.

It is also now widely publicised that there are concerns, that “no jab, no job” policies would disproportionately affect younger individuals as these are the last to receive the vaccine.

We are aware that at the moment there is much speculation, Employers do need to err on the side of caution, cases have not been tested in tribunal, cases will presumably be challenged, we would urge Employers embarking on any ‘NO JAB, NO JOB’ approach to seek HR professional support.

 

 

Can Employers act against Employees who refuse to take the vaccination?

The reasons in this instance would be limited but, in these circumstances, Employers may give thought to acting where a refusal is on the basis that it is considered to be a ‘reasonable management instruction’.

It is worth bearing in mind in this situation as an Employer you would need to have considered the risks involved as detailed below:

 

  • Where an Employer can demonstrate why Employees must have the vaccine, this must be in order to carry out their role, the rationale behind this would need to be where the risk of transmission leading to the impact of an outbreak is high, e.g hospitals and care home settings. In this case there may be an argument using some other substantial reason (SOSR). It is worth noting at this early stage that none of these have been tested in any tribunals and therefore would be tested on each individual case in due course.
  • Should any dismissal take place this must be based on an unreasonable refusal for it to amount to a fair dismissal. Any dismissal must be based on facts and the Employee afforded the opportunity to set out their argument for their refusal.
  • When considering any dismissal Employers must factor whether any alternatives can be offered, this may be redeployment to another role where there is a reduced risk of COVID-19 or any other adjustments or changes prior to dismissal.

 

Employers must remain mindful prior to embarking on any disciplinary action and we would seriously urge any Employer to seek our professional advice ahead of time where an Employee is refusing vaccination.

 

 

What about discrimination risks associated with vaccination?

Whilst you may experience many Employees that may refuse based on their concerns about the vaccine itself these individuals may not fall under the Equality Act 2010.

It is imperative for Employers to understand and to look out for reasons connected with or arising out of a protected characteristic which could then give rise to a claim under the act.

These may be for example:

 

  • Employees advised or do not consider it safe to take the vaccine as a result of an underlying medical condition, which could amount to a disability;
  • Employees concerned about the ingredients of the vaccine that may go against their religion or beliefs;
  • Pregnant or Employees trying to get pregnant who have been advised not to take the vaccine or do not consider it safe;
  • Where an Employee has the argument that is against their philosophical belief, including those part of the anti-vaccination movement.

 

Above are examples, the list is not exhaustive and based on foreseeable arguments that may/could be brought by Employees on the nine protected characteristics under the Equality Act 2010.

The above list is in line with data from NHS at the time of writing.

 

 

How can we help you further?

We would urge anyone should you have any concerns or further questions about vaccination or about COVID-19 in general to contact a member of our team direct, we are as always more than happy to discuss your needs.

 

Dated 12 January 2021

Updated 19 February 2021

 

 

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