Several UK businesses revealed that they are considering adopting a jab or job approach. In other words, no jab means no job.
Many trade unionists and government representatives have condemned this approach. But do you know where your law firm stands?
You can argue that businesses such as care homes have a good point. Shouldn’t they be able to insist that all employees receive the vaccine? However, is there a case for legal practices adopting the same attitude?
Howard Beckett, Assistant General Secretary of Unite, tweeted that “a divisive narrative is being created about forcing workers to have the jab.”
Frances O’Grady, General Secretary of the TUC, threw his hat into the ring. He stated: “The government should make clear that making vaccination a condition of employment is the wrong approach. It may be discriminatory and open up employers to legal challenges. Ministers must remind employers to make sure their workplaces meet covid-secure guidelines.”
The latest word from a Downing Street spokesperson said it would be “discriminatory” to insist an employee receive the jab.
Black and white?
So, what is the legal position? Can you demand that your employees receive the jab to continue working? The legal response seems to be less than black and white.
Employment law requires employees to follow the reasonable instructions of their employer. If an employee is working with vulnerable groups, such as care home residents, a requirement to vaccinate sounds reasonable to protect residents.
That said, employers may not be able to rely on this argument. Especially if they work in a sector where employees can work from home.
The Solicitors Journal recently reported the analysis of Helen Littlewood, a senior solicitor in the employment team at Centrefield LLP. She said:
“Companies must be careful if they are trying to implement a blanket policy of mandatory vaccination as this could expose them to claims of discrimination.
She also added:
“Companies should review their workforce and individual roles – looking, in particular, at the health and safety risks before considering any such policy.”
So, for both businesses and employees alike this poses a key question. ‘If an employee refuses to comply, can dismissal follow?’ From the employer’s point of view, a request to vaccinate could be reasonable in the light of health and safety law. Any refusal to vaccinate by an employee amounting to misconduct.
Employers also often use the “other substantial reason” approach. Employers can pursue this route when an employee refuses to vaccinate. In this instance Littlewood urged caution when considering dismissal on the grounds of failing to comply with a request to vaccinate.
Then there’s the discrimination side of things. Littlewood pointed out that where employee treatment is different depending upon vaccination status, employers risk being accused of indirect discrimination. This is particularly true where certain groups of people may not be able to receive the vaccination at present.
Phased immunisation rollout means younger people are unlikely to be at the front of the queue. That can allow them to claim they have suffered age-related discrimination if they lose a job due to being unvaccinated. Individuals with underlying health conditions face a similar predicament. If you are advised to avoid the vaccine, it could lead to claims of disability discrimination.
Sex discrimination also comes into the frame. The vaccine is not recommended for pregnant women. However, treating a female employee differently during pregnancy may be discriminatory.
Lastly, religious grounds should be considered. Those who are unwilling to vaccinate due to their religious beliefs, expose employers to the risk of religious discrimination.
As easing of lockdown restrictions comes into place, jab or job will become more prominent. Interesting times and interesting test cases will surely follow.