No jab, no job policies - the legal issues

Author: Darren Newman

It seems that every phase of the pandemic brings new employment law issues to the fore. The start of the vaccination programme prompted the ongoing debate about whether employers can insist on employees being vaccinated against COVID-19 - a policy pithily summarised as no jab, no job.

So can an employer insist on vaccination? Almost inevitably - it depends. Clearly, requiring someone to be vaccinated is a very different proposition from requiring them to take a COVID-19 test or wear protective equipment. No-one could have been surprised when an employment tribunal found that a lorry driver was fairly dismissed when he refused to comply with an instruction to wear a facemask while on a client's site (Kubilius v Kent Foods Ltd ET/3201960/20). The client banned the lorry driver from its site and the tribunal found that dismissal was within the range of reasonable responses. Whether there really was a need for a mask to be worn while the driver was sitting in his own lorry is really neither here nor there. It was clearly misconduct to refuse to comply (despite repeated requests) with the rules in place on the client's site. Wearing a face mask may be uncomfortable and the employee may have disagreed with the client's assessment that he needed to wear it even when he was sitting alone in his lorry cab but there was no suggestion that the mask would have caused the employee any harm - he just didn't want to wear it.

A vaccination is different. It is not just something that is worn during the working day and can then be discarded. Being told to inject a substance into your body is clearly a much more intrusive requirement than wearing a mask or even taking a COVID-19 test. There is a human rights issue here. Whatever you think about the worries that some people might have about being vaccinated, it is clearly a matter of bodily autonomy. In January, the Parliamentary Assembly of the Council of Europe (the body that oversees the European Convention on Human Rights - not to be confused with the European Union) adopted a resolution on the fair distribution of COVID-19 vaccinations. It stressed that vaccination should not be mandatory and that individuals should not be discriminated against for refusing the vaccine. The resolution is not binding in the UK but it clearly illustrates that there is a human rights dimension to any requirement that may be placed on individuals to be vaccinated.

In most human rights cases however there is a balance to be struck. The rights of the individual must be balanced against the need to protect the rights of others. If requiring employees to have the vaccine is a proportionate way of protecting others from the virus, then it seems to me that it would be a reasonable requirement.

So if an employer was to introduce a "no jab, no job" policy, then the question would be "why?" Who is the policy designed to protect and what is the evidence that this is an effective way of achieving that aim?  If the employer just thinks it would be better for everyone if the whole team had the jab that is not going to be good enough. Dismissing someone who refuses to comply - or refuses to hand over evidence showing that they have been vaccinated - is likely to be unfair. Admittedly, it is harder to think of a potential employment law claim if the employer imposed the requirement when recruiting new staff. In theory it might be argued that this approach involves indirect discrimination on the basis that some ethnic groups are less likely to have been vaccinated than others. However it is not clear that the statistical evidence would really bear that out.

If an employer is going to impose a requirement that its existing employees should be vaccinated, it will certainly need to have a good reason for doing so. That reason will need to be rooted in a proper risk assessment of what might happen if an employee were to attend work without having had the jab. An employer operating a care home for example might well be able to argue that staff need to be vaccinated to protect vulnerable residents. But in employment law a blanket policy imposed with no room for exceptions is seldom a good idea. If there are staff who do not receive the vaccination then the employer should speak to them and ask why. It may be that they have a medical condition that means that they are unable to be vaccinated and this should be taken into account. In that case the employer should assess the risk that they really pose given the number of their colleagues who will have been vaccinated.

In any event, the position will need to be kept under review. As the base level of infection in the community continues to fall (we hope) that is likely to affect the balance of risk. If the risk changes, the justification for a continued policy requiring vaccination may need to be reviewed.

I am no expert on fighting a pandemic. But I suspect the "no jab, no job" idea will not see widespread implementation. The point of a vaccination campaign is not to create a "safe" class of people who cannot pass on the virus - it is to reduce the incidence of coronavirus in the community to such an extent that it is no longer regarded as a threat. The level of vaccination in the community as a whole is more important than whether one particular individual has been vaccinated. When the vaccine has done its job, most employers will not feel the need to have a specific policy on the issue. There may be jobs where the risk is greater and for those employees regular COVID-19 vaccinations may continue to be a requirement - just as an up-to-date flu jab is considered essential for frontline NHS workers. For the rest of us, having the vaccine is likely to remain a matter of personal choice.

I'm certainly looking forward to mine.