“No jab, no job”

"No jab, no job" - Can an employer insist that an employee be vaccinated against Covid19?

Of course, an employer cannot physically force anyone to have a vaccination. But what if an employer indicates, perhaps with consultation, that an employee will be dismissed if they do not have the vaccine?

ACAS have published Guidance on the coronavirus vaccine at work. It makes it clear that employers should support employees in getting vaccinated.

However, there is no general law that states that people must have the vaccination. It remains a matter of personal choice.

In light of this, some employers may consider a "no jab, no job" policy.

Of course, the simple answer is that any employer can dismiss an employee, and there is nothing that the employee or the Employment Tribunals can do to prevent that dismissal taking place.

However, we can consider whether that dismissal would be lawful, or whether it might be unlawful and give rise to claims that can be made by the employee.

The most likely claims that might arise are unfair dismissal and/or discrimination.

If a dismissal takes place an employee may be able to claim that the dismissal was unfair. Or the employee may claim constructive dismissal if the employee believes that the employer has breached the implied term of trust and confidence. In order to be able to make such claims in most instances employees have to have continuously worked for the employer for 2 years.

The employer may face potential claims of discrimination, for which there is no requisite continuity of employment; indeed, unsuccessful job applicants can make such claims.

In order to make a claim of discrimination, broadly speaking, the employee would have to show that the alleged discrimination related to a protected characteristic. So, a "no jab, no job" policy may indirectly discriminate against the young, if they are not yet able to get the vaccine in time. It may indirectly discriminate against those who refuse the vaccine because of religious or philosophical beliefs. It might indirectly discriminate against those who cannot have the vaccine because of a disability. However, refusal to have a vaccination due to being an anti-vaxer or a belief that the pandemic is a hoax, is unlikely to be a protected characteristic.

Accordingly, the ACAS Guidance states that if somebody does not want to be vaccinated the employer:

• Should listen to their concerns as some people may have health reasons for not wanting to be vaccinated, e.g. they could get an allergic reaction
• Should be sensitive towards individual situations
• Must keep any concerns confidential
• Must be careful to avoid discrimination.

For the reasons set out above a blanket approach is likely to be ill advised. However, on a case-by-case basis it may be that an employer does decide that it is necessary for staff to be vaccinated, if the vaccine is required in order for someone to do their job.

This might include staff who travel to other countries to work and need proof of vaccination as a condition of entry. It might include health or care workers working with the clinically vulnerable. However, an employer will need to consider the evidence to support the view that a vaccinated person is less likely to transmit the virus than others. The dismissal may be unfair if the employer is not able to show that they were unable to redeploy the employer to a non frontline position.

It is likely to be the case that the employer will have to tread lightly. They would need to work with staff or any recognised trade union to discuss what steps to take. A fair procedure would need to be adopted in line with the organisations disciplinary and grievance procedures. It would certainly be advisable for the employer to obtain legal advice.

If the employee works in a low-risk setting, or one in which they are able to effectively work from home, it is unlikely that an instruction to be vaccinated will be regarded as unlawful and reasonable instruction which might fairly lead to a disciplinary procedure.

An employer will need to take great care to consider an employee's reasons for not being vaccinated. Such a requirement could be discriminatory, if it is not a proportionate means of achieving a legitimate aim.

It is worth bearing in mind that these issues have not yet been scrutinised by the appellant Tribunals or Courts. Until they are, there will remain uncertainty as to how the Employment Tribunal's will deal with these issues in practice. Advice should always be taken before considering whether to impose a policy which might be discriminatory or before considering whether to dismiss an employee.

This is not legal advice; it is intended to provide information of general interest about current legal issues.