'No jab, no job': Employers spark legal debate

A number of businesses have announced they are taking a ‘no jab, no job’ stance over covid-19 vaccinations for staff, an approach condemned by trade unions and the government. 

Barchester Healthcare, one of the UK’s largest providers of residential care homes, said that it will only employ vaccinated staff. Large London-based plumbing firm, Pimlico Plumbers, also announced it will only employ vaccinated workers. 

However, trade unions have expressed concern over mandatory vaccination policies. Howard Beckett, assistant general secretary of Unite, tweeted that “a divisive narrative is being created about forcing workers to have the jab.”

Frances O’Grady, general secretary of the TUC, has reportedly said: “The government should make clear that making vaccination a condition of employment is the wrong approach. It may be discriminatory and open up employers to legal challenge. 

“Ministers must remind employers to make sure their workplaces meet covid-secure guidelines.”

A Downing Street spokesperson said it would be “discriminatory” to insist an employee receive the jab. 

So, what is the legal position? Can an employer insist an employee must receive the jab to retain or secure a job? Initial analysis within the legal sector suggests the answer is not clear cut.

Employment law requires employees to follow the reasonable instructions of their employer. If an employee is working with vulnerable groups, such as care home residents, a requirement to vaccinate could be deemed to be reasonable to protect residents. 

However, employers may not be able to rely on this argument if they work in a sector where employees can work from home, for example. 

Helen Littlewood, a senior solicitor in the employment team at Centrefield LLP, said: “Companies must be careful if they are trying to implement a blanket policy of mandatory vaccination as this could expose them to claims of discrimination. 

She added: “Companies should review their workforce and individual roles – looking, in particular, at the health and safety risks before considering any such policy.” 

Many businesses and employees alike will be asking the question, ‘If an employee refuses to comply, can they be dismissed?’ 

Employers may consider that a request to vaccinate is reasonable to avoid breaching health and safety law and that any refusal to vaccinate by an employee amounts to misconduct. 

Another grounds for dismissal on which employers commonly seek to rely is ‘some other substantial reason’, which is a potentially fair reason for dismissal. Employers may argue this in the context of an employee who refuses to vaccinate.  

However, Littlewood urges caution when considering dismissal by reason of non-compliance with a request to vaccinate.  

She also highlights that where the treatment of employees is different depending on whether they have been vaccinated or not, there is a risk that employers may be accused of indirect discrimination, as certain groups of people may not be able to receive the vaccination at present. 

Due to the phased immunisation rollout, younger people are unlikely to receive the vaccine soon, and may claim they have suffered age-related discrimination if they lose a job due to being unvaccinated. 

Individuals with certain underlying health conditions may be advised to avoid the vaccine, which could lead to claims of disability discrimination. 

The vaccine is currently not recommended for pregnant women. However, if a female employee is treated differently because of a disclosure that they are pregnant, this may be discriminatory on the grounds of pregnancy or sex. 

Finally, while religious leaders have overwhelmingly supported the covid-19 vaccine, some people may be unwilling to be immunised due to their religious beliefs, potentially exposing employers to claims of religious discrimination.  

With Prime Minister Boris Johnson expected to make further announcements on 22 February about easing restrictions, we can expect to see more businesses start to plan their return to work. This is an issue we will no doubt hear more about and which will lead to some interesting case law.