The BBC and various newspapers have recently reported that Robert Buckland the Justice Secretary has said that he believes that employers may be able to insist on employees receiving the COVID vaccine prior to returning to work. This is a surprising suggestion and this article considers some of the employment implications which could arise following any attempt to apply a “no jab, no job” policy to employment contracts.
The attraction of the "no jab no job" approach for any business which has employees who provide services in the domestic environment is fairly obvious. It could be a significant marketing advantage for a business to run advertising which suggests that all their employees have been vaccinated, with the implication that they could not take the virus into the homes of customers. It has been reported that Charlie Mullins, C.E.O of Pimlico Plumbers has already suggested that his business will use this approach with their workers and the CEO of Etihad Airways recently announced that the business was the first to have 100% vaccinated flight staff and end to end COVID-19 testing (i.e. negative tests prior to leaving and upon arrival).
The positive PR and reassurance that “no jab no job” policies would provide to customers is clear. The challenge may arise in introducing this policy into staff employment contracts in a way which will be legally enforceable and with minimal risk of future litigation from staff. The major difficulty will be that the vaccination is not within the control of the business and is presently only available via the NHS to "priority groups" (i.e. the over 50s). Some businesses may be able to mitigate this issue by arranging for staff vaccinations on a private basis (there have been reports that the COVID-19 vaccination may be available privately to patients in the UAE and India), but most employees will access the vaccine via the NHS. If the only route which is available to employees to access the vaccine is via the NHS this presently favours employees who are aged over 50 (or in the at risk categories). This restriction on access to the vaccine may change over time and there has been some press speculation that professional groups such as teachers and law enforcement may be prioritised.
The various COVID-19 vaccinations are new products and may not be appropriate for all employees. Some employees may have a medical condition which precludes them from having the vaccine (for example the vaccines are presently not recommended for people who have previously experienced an allergic reaction to any of the components in the vaccine). It is also possible that pregnant women may be reluctant to accept the vaccination in view of previous high profile examples of birth defect cases being associated with drugs such a thalidomide and recent controversial studies relating to the MMR vaccine.
If, as seems likely, there is a lower level of take up of the vaccine by particular groups (for example people with particulars medical conditions, pregnant women, or members of particular faith groups), any requirement that employees should be contractually required to have the vaccine could be considered to be indirectly discriminatory.
Discrimination could occur where employees (or applicants for employment) were subject to a “detriment” as a consequence of their membership of a particular group of people with a shared “protected characteristic”. Pregnancy, age, disability and religious belief would all be examples of a protected characteristic. Refusing employment or offering less favourable work (possibly non-Client facing work) may be regarded as detriments.
For these reasons, if a business only allows employees who have been vaccinated to undertake their work, or to work in the homes of customers, it seems likely that disadvantaged employees will have a strong argument that they have been discriminated against due to their age (too young to be given the vaccine), their disability (they cannot have the vaccine due to their medical condition), or their religious belief. In short the "no jab no job" approach seems to be a legal “trap” for employers.
We are advising employers to be cautious about adopting a no jab no job approach towards employees. However the situation could be slightly different if employers were to adopt a "no test no job". Lateral flows tests are becoming more available to employers and these provide rapid results to confirm positive or negative status. Employers could purchase a quantity of these tests and offer them to all employees. Employers have a legal obligation to provide employees with a safe place of work and mass testing may well be a reasonable step to complying with that obligation.
If you have any queries about these suggestions, or the management of employees with the virus please do not hesitate to get in touch.
The opinions in this blog form a general overview of the law and its application. You are advised to seek specific legal advice for individual cases as each will be highly fact-specific and the current COVID-19 pandemic presents its own unique and untested legal challenges.