No Jab, no Job?

With the rollout of the coronavirus vaccination gathering speed, it is inevitable debates have arisen in the employment sector with rumblings of “no jab, no job” being heard. The pressing question is, can employers lawfully take such a hard-line approach?

The latest press reports suggest that whilst employers of existing employees would need to approach the issue with greater caution, Welsh MP Robert Buckland has suggested that compelling new employees to be vaccinated could, in theory, be possible provided there is provision within the contract of employment.

It is anticipated that this perhaps extreme standpoint could be justified by employers under the existing provisions of health and safety laws and regulations. What we must recognise however is that a “blanket approach” to a health and safety justification will not be effective. There may be a number of reasons as to why an individual cannot/will not have the vaccine such as pregnancy, breastfeeding, disability, religion or genuinely held belief and each presents its own circumstances that an employer must bear in mind when handling the issue. Whilst previous cases have demonstrated that employers’ regard to health and safety could objectively justify seemingly discriminatory provisions (Chaplin v Royal Devo & Exeter NHS Foundation Trust ET/1702886/09) it is clear a “one size fits all” approach would be ill advised and fraught with litigation risk.

Another aspect to consider is the risk of age discrimination to younger candidates and employees who are presently last in line to receive the vaccination and who, through no decision of their own, cannot comply with a “no jab no job” policy. Again, a blanket approach will disproportionately affect young people but on a more practical level, an employer stands to lose valuable new skills and benefits to the business.

Where this leaves employees who cannot demonstrate one of these reasons is regrettably unclear at this stage. There is scope to seek a lawful dismissal on the basis that the employee has failed to follow a reasonable management instruction, however the employer would need to establish the employee’s refusal to comply was unreasonable, and this will very much depend upon the employee’s particular circumstances not limited to the individual’s role, working environment and reasons for refusal of the vaccine. The Government has issued guidance on working safely during coronavirus identifying 14 different types of workplace and recommendations for each and I suspect similar principles will apply when considering whether vaccinations are reasonably required.

More recently, the tribunal has ruled against a Claimant’s unfair dismissal claim following his dismissal for refusing to wear a mask on a third-party site. Here the Claimant sought to rely upon the fact that he was a lone worker in a lorry cab, there was no specification of masks or face coverings in the Respondent and third party’s health and safety policies and the existing Government guidance did not make face coverings a legal requirement. Ultimately the tribunal concluded the Claimant’s refusal to be unreasonable concluding his dismissal was fair. Whilst this particular case does not relate to the vaccination it does perhaps serve as an indication as to where the tribunal and the law will fall on the issue.

Although there is nothing to legally prevent employers introducing a “no jab no job” policy I would strongly urge employers to carefully consider each type of working environment and carry out thorough risk assessments before doing so.

With Employment Tribunals currently inundated with a backlog of claims, it is likely to be some time before we have a clear official decision from the tribunal.