‘No Jab, no Job’ – where are we and what do businesses need to know about staff and Covid Vaccine?

covid-19According to the justice secretary, it is legal for businesses to insist on new employees being vaccinated as a condition of their employment – in what is referred to as a ‘no jab, no job’ contract.

In an interview with ITV, Robert Buckland suggested it is “up to businesses what they do” – and that only enlisting new staff once they had been inoculated was possible if it was written into their contracts.

However, Buckland said it was unlikely bosses could make existing employees have vaccines under their current contracts.

In other related news, Barchester Healthcare, which runs more than 200 care homes in the UK, has already announced all new recruits must be vaccinated against Covid-19 unless they have medical reasons not to take the jab; and London-based Pimlico Plumbers said when vaccinations are readily available, all new workers will have to have one.

Lawyer Philip Landau, whose firm Landau Law works for employees, also said he has seen some employers expecting staff to agree to get the jab or be disciplined.

So what action should businesses take?

Kathryn Barnes, Employment Counsel EMEA at Globalization Partners, comments: “There are two important things to consider in terms of mandatory vaccinations: there is asking employees to take the vaccine, and then considering what happens if they say no. Under the age-old Human Right Convention, you cannot force another person to do anything – including taking a vaccine. In the UK, if you have over two years of employment then you cannot be terminated, as this counts as unfair dismissal.

“However, what employers can do is strongly encourage employees by talking to them, providing documentation and valuable guidance: information from NICE guidelines, government and vaccine manufacturers, for example. It’s important for employers to give employees the time to look into these materials and have a dialogue with them about it in which all concerns can be addressed.

“If an employer wishes for all employees to be vaccinated, they could incentivise them with paid half a day off to receive their vaccine, or provide them with a contact line or workshop sessions to engage with professionals and employees.

“Whilst refusing to take the vaccine could be deemed as a health and safety issue, at the moment there hasn’t been an indication about whether it will be brought into this legislation. I don’t think that will happen, merely because we have millions of healthcare professionals, whether it be NHS or nursing home residents, who have also declined it for whatever reason.

She continues: “However, in some professions, vaccinations may become a mandatory part of the job noting the requirement in future employment contracts. In care homes, for example, it is possible that it will become a staff requirement further down the line. Likewise, as the year progresses, certain countries are likely to offer travel passports for people that have had the vaccine.

“If travel is a requirement of the job, and your choice is not to have the vaccine, this could also affect your job as you wouldn’t be able to fulfil a fundamental part of the role. This in itself could result in a potential discrimination challenge however, each case will have to be dealt with very carefully.”

Tony Prevost, HR Director EMEA at Skillsoft, comments: “As employers turn their attention to getting employees back into the office, mandatory Covid-19 vaccinations presents a minefield of compliance and discrimination issues.

“Employers are now in uncharted territory and contracting with employees based on their medical history may have far-reaching consequences. This issue is much more complex than ‘no jab, no job’.

“The number one priority for HR teams is making sure the working environment is safe for everyone. What will they do if existing employees don’t want the vaccine? How will they manage the risk of shared working environments? Might there be a need for a broader certification process for employees that goes beyond current employment contracts?

“Lots of organisations want their employees to come back to the office – particular companies that have signed long leases – but the concern for employers is regulating how people come back to a physical workplace safely and legally.”