Following the government’s decision that all NHS England staff need to have the COVID-19 vaccine, there has been a lot of talk as to whether organisations can force current employees to have the vaccine and whether they are able to implement a “no jab, no job” policy to new recruits.
Aside from the NHS in England and parts of the care sector , the government has previously said that this is a “matter for employers”, however, employers still need to comply with current employment laws, most specifically not to unfairly dismiss employees and not to discriminate against them.
In the absence of the government saying that having the COVID-19 vaccine is a requirement to work in your industry, dismissing an employee, particularly one with over two years service, is likely to be very problematic. It is hard to envisage a situation where an employee would be deemed to have been fairly dismissed for refusing a vaccine, although this hasn’t been tested and it is therefore possible that any tribunal judgments may vary from industry to industry and case to case. Our strong advice would be not to dismiss an employee for refusing the vaccine.
Whilst it is a little easier to justify only taking staff on who have had the COVID-19 vaccine, it is still likely to be a risky strategy, especially if this is a blanket approach. There is a possibility that a blanket approach to such matters may result in a Tribunal finding that you have discriminated against an employee/candidate on the following grounds:
- The basis of a disability, i.e. if they cannot have the vaccine due to a disability. It is likely that you would have to consider whether allowing them to work without the vaccine, perhaps in a more socially distanced manner, would be considered a reasonable adjustment.
- Religious discrimination – some religious groups may not believe in vaccinations and this may cause issues.
- Belief discrimination – there could be an argument that being an anti-vaccinator qualifies as a “belief”, however, it is likely that this would be a difficult argument to bring.
If you want to implement a “no jab, no job” policy, you will need to consider the individual circumstances of people who refuse to have the COVID-19 vaccine, cannot have it or cannot yet have it before telling them that they are unable to work with you (as well as going through the necessary HR procedures if relevant). If such a situation arises, we would recommend that you speak to your usual adviser for advice.
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