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Coronavirus (COVID-19): Announcement to Clients

Coronavirus vaccine

'No Jab, No Job' - Can You Force Your Employees To Get Covid-19 Vaccinations?23rd Feb 2021

by Hugh Reid on 23rd Feb 2021

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You’re Facing An Employment Law Dilemma

Employers like you are caught between a rock and hard place when it comes to Covid-19 vaccinations.

On one hand, you have a duty of care to your employees, workers and other stakeholders – you must operate a safe working environment. So at headline level it makes sense for everyone to be vaccinated.

But on the other hand, you can’t force your employees to get vaccinated. If you do, you could face time-consuming and costly employment tribunals (or even prosecution for a criminal offence).

It’s an unenviable choice for a responsible employer like you who wants to protect their staff, their customers, their business – and to comply with all the relevant laws.

What Are The Rules On Covid-19 Vaccinations?
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What The Government Says

Justice Secretary Robert Buckland has said it may be legal for employers to insist on new staff being vaccinated against Covid-19 as a condition of their employment.

One high-profile firm, Pimlico Plumbers – which is no stranger to the employment law spotlight – has already said that it will not hire new staff who have refused the jab on non-medical grounds.

Last month, Pimlico Plumbers was reportedly considering planning to rewrite the contracts of its workers, requiring them to be vaccinated. The firm would look at all those who declined the jab on a case-by-case basis to see whether it would keep them on.

But can an employer do this? It’s very risky – you could face legal action for alleged discrimination. And there is no limit on the fines that a tribunal can impose for discrimination.

The government is under no illusions about what a tough choice employers face. The idea of ‘no jab no job’ would depend on a firm’s contracts and terms of employment.

The Justice Secretary was quoted as saying he would be “surprised” if any existing contracts made ‘no jab no job’ lawful – and that the issue would have to be tested legally.

But in the meantime, Whitehall is considering proposals to issue people with certificates confirming whether or not they had been vaccinated. The aim is to help some sectors of the economy to reopen this summer. The certificates could take the form of an app but there would have to be an alternative for people without a smartphone.

Civil servants are investigating the equality, privacy and ethical concerns surrounding the plan. They are expected to report to government ahead of the final phase of unlocking (due on 21 June 2021 at the earliest).


What The Law Says

Discrimination is the big danger here. You could face a sex discrimination claim if you try to force a pregnant employee to have the jab – when she has refused because she is worried about the possible effect on her unborn child.

And then there are the issues of religious and disability discrimination. Both are protected under the Equality Act 2010. Covid-19 – being so new – is not officially listed in the Equality Act as a protected disease.

But there is precedent for employment law being updated to cover new diseases: the Equality Act 2010 automatically treats HIV as a disability from the point of diagnosis.


Can You Change An Existing Employee’s Contract To Add A ‘No Jab No Job’ Clause?

Yes (in theory) but it’s not easy. Legally, there are only limited circumstances in which you can amend an existing employee’s contract:

  1. If the existing contract allows you to do so using a ‘flexibility clause’ – but contract terms must be reasonable. If a contract gives an employer carte blanche to do what they like then that’s hardly reasonable…and it could be challenged at a tribunal.

    Remember, an employment tribunal does not have to succeed for it to be time-consuming, stressful and expensive – at a time when you need to focus your attention on keeping your business afloat.
     
  2. If the employee’s trade union representative agrees to the change on their behalf – but this proviso must be included in the existing contract.

    So the employee must have signed up in advance to the idea of letting a union rep negotiate terms for them. Significantly, the employee does not have to be in the union for any new rules agreed by the rep to apply to them.
     
  3. If there is a change in the law which compels you to do so (in order to comply)…but is this likely to happen? Can you imagine any UK government mandating vaccinations?

    Even the Public Health (Control of Diseases) Act 1984 – which gives the government powers to prevent, control or mitigate the spread of an infection – states that the rules cannot force people to be vaccinated. This protection, which originally applied to England and Wales, was extended to Scotland and Northern Ireland under the Coronavirus Act (March 2020) – confirming Parliament’s recent view on the matter.

    Ultimately, people must give their informed consent before they can be vaccinated. And there are not just human rights concerns: forcing someone to be vaccinated could be viewed as an unlawful injury (a criminal offence).
     
  4. If the employee gives you their permission. But be careful how you put the idea to them. If there is the slightest whiff of ‘firm encouragement’ (aka coercion)…if the employee fears they could lose their job if they don’t agree…then you are likely to be on very shaky ground legally.


How Best To Proceed – Get Expert Legal Advice

Right from the start, this issue of ‘no jab no job’ had all the hallmarks of being an employment law minefield for employers.

You’re trying to do the right thing but no matter which way you jump to comply with one law, you risk falling foul of another. It puts you in a very difficult position at a time when trading conditions have been extremely tough.

But every case is different. Each will be judged on its own merits. So it pays to get some expert legal advice on your particular situation before updating your policies and/or employment contracts.

Contact Coles Miller employment law solicitor Hugh Reid for more information.