No Jab No Job – The Employers PerspectivePosted: 14th May 2021

At the time of writing COVID 19 has been responsible for over 127,000 deaths in the UK. There is growing evidence that the UK vaccination programme is reducing deaths and the number of new infections and whilst take up for the vaccine in older age groups has been high a great many people still report hesitancy or reluctance towards vaccination. Those Employers who regard vaccination as the means towards a return to some form of normality may want to consider the adoption of a no jab no job policy when appointing new employees or applying this to existing employees. In this blog I will be highlighting the issues and the potential pitfalls but in response to the question ‘Can such a policy be lawful?’

In my opinion and in appropriate cases the answer is Yes. A ‘no jab no job policy’ engages 3 principal legal issues

1. Contractual Issues

Most employment contracts are unlikely to include provisions dealing with vaccination policy or expectations but every contract of employment contains terms which are implied in law, the most significant here being the implied term to provide a safe and suitable working environment. The approach of the Courts in deciding if contractual terms can be enforced is to consider whether the clause is lawful and reasonable. In this regard each case is considered on its own merits and the reasonableness of the clause setting out the employer’s requirement is likely to come under most scrutiny. A no jab no job clause is more likely to be considered reasonable in the context of a care home worker caring for the vulnerable in their homes for example than it would be in the context of an office worker employed in an Office environment where the Employer was adhering to the Governments safe workplace guidance.

2. Human Rights Issues

Article 8 of the European Convention on Human Rights recognises an individual’s fundamental right to respect for one’s private and family life. Encouragement to agree to a vaccination on threat of no offer of employment or possible disciplinary action has the potential to violate this right. The European Court of Human Rights will be considering the legality of a no jab no job policy in the context of COVID 19 later this year but there is existing case law concerning the MMR vaccine to suggest that the Court may deem such a requirement to be ‘justifiable’ so as not to make it unlawful

3. Discrimination Issues

In both the recruitment and employment of individuals Employers are required not to subject individuals to unlawful discrimination on the grounds of various ‘protected characteristics. In the context of a no jab no job policy the protected characteristics of ‘disability’,’ age’, ’race’ and ‘religion or belief’ are probably most likely to arise whether because a disabled person may not be suitable for the vaccine, a younger person is likely to have lower priority for vaccination or because an ‘anti vaxxer may have a belief’ that the vaccine is a means of state control. It follows that an employee disciplined for breach of a no jab no job policy or a recruit denied employment could argue that they have been subjected to discriminatory treatment and claim compensation (potentially unlimited in value).In most cases the discrimination involved is likely to be ‘indirect discrimination’ and unlike ‘direct discrimination’ an employer may be able to justify it can show that the policy was introduced for a ‘legitimate aim’ and that the requirement is a proportionate means to achieving that aim. Again, the question is likely to be specific to the Business concerned but there is the potential for such a policy to be non-discriminatory.

Summary

A no jab no policy may be lawful and enforceable both in relation to the recruitment and employment of your staff but like any other policy should only be introduced after careful consideration, risk assessment and the consideration of all possible alternatives. Most importantly however is the need for any Employer to act sympathetically and tactfully. The Pandemic has had a profound and lasting effect on businesses and individuals alike, it has made us all anxious and the need to engage sensitively and constructively with your employees is crucial in considering any measures arising from the pandemic.

For more information relating to employees returning to office based work, hiring new employees in the current environment or just general Employment legal advice, please contact our Employment Solicitor Graham Shannon on 0191 323 3932 or at [email protected]