No Jab - No Job Policies: Can Businesses Require Staff To Have The COVID-19 Vaccine?

• Published date: 20 May 2021
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Discrimination, Disability & Sexual Harassment, Unfair/ Wrongful Dismissal, Health & Safety, Employment and Workforce Wellbeing
• Law Firm: Goodman Derrick LLP
• Author: Ms Clare Gilroy-Scott

With reports of possible vaccine passport requirements and the use of so-called 'no jab - no job policies', is it lawful for employers to require their workforce to be vaccinated? And what are the possible employment law implications of such a policy?

Can an employer require its workforce to get the vaccine?

Despite talk of the vaccine being mandatory in certain sectors such as healthcare, there is currently no legal requirement for anyone to be vaccinated. This means that an employer cannot force an employee to be vaccinated without their consent. It may be possible for an employer to argue that it is a reasonable request to require customer facing staff and those preparing food be vaccinated on health and safety grounds, i.e. this is likely to limit the spread of the virus and put customers and other staff at ease. However, employers should not be hasty in disciplining or dismissing those who refuse. Each case should be considered on its facts. There may be a reason why the vaccine isn't suitable for an employee, including if they are pregnant or have an immune system disorder.

What employment law issues arise if mandating vaccination?

• Unfair dismissal: an existing employee with over two years' service may claim that a refusal to provide them with work or prevent them from coming to the workplace if they are not vaccinated amounts to a repudiatory breach of contract, entitling them to resign and claim constructive unfair dismissal.
• Human rights: it may be a breach of the individual's rights to privacy or freedom of thought, conscience or religion.
• Discrimination: mandatory vaccine requirements could lead to claims of discrimination on various grounds, both by applicants for work as well as employees. Younger workers who have not been offered the vaccine may claim age discrimination if they face dismissal, detriment, or refusal of a job as a result of not having had the vaccine. Others may refuse the vaccine because their religion disapproves of such medical treatment.
• Prohibited health questions: employers are not permitted to ask about an applicant's health before offering work.

To counter possible allegations of indirect discrimination, a no jab-no job policy must be a means...