There has been much talk surrounding whether employers can legally force their workers to be vaccinated against COVID-19. However, the Prime Minister has dubbed this policy “discriminatory”.
An official spokesperson for Prime Minister Boris Johnson has stated that requiring staff to get the COVID-19 vaccine in order to keep their job is a form of discrimination.
The spokesperson, speaking on behalf of Mr. Johnson, said:
Taking a vaccine is not mandatory and it would be discriminatory to force somebody to take one.
With much controversy linked to the legalities of forcing employees to get vaccinated, it is clear that the “no jab, no job” policy is anything but simple and could lead to a rise in unfair dismissal claims.
Several newspapers such as the Daily Telegraph reported that Whitehall sources have stated that companies who adopt a “jab for a job” stance are protected by current health and safety laws which require workers to protect themselves and their colleagues from injury or harm.
However, Esther Smith, employment partner at TLT, explored why this would not be so simple:
The first thing to note is that the Government has not made the vaccine mandatory. Most employers are likely to support their staff in getting the vaccination, but it would be risky for employers to insist on vaccination in the majority of cases. For example, an employee may be unable to get the vaccine because of a health condition which could give rise to arguments of disability discrimination.
In certain sectors, such as care homes, it may be viewed as reasonable for an employer to request that all staff be vaccinated. In cases where employees do not want the vaccine, consideration should be given to alternatives such as redeployment and working from home before taking any action against that employee.
However, Ms. Smith continued to explain employers’ role in “[taking] a reasonable care in the health and safety of their employees” and the expectation that they would “take reasonable steps to provide a safe workplace and a safe system of work”.
If this policy was implemented, Ms. Smith stated that employers would need to introduce a contractual requirement but that this would amount to a change in terms and conditions. If an employee chose not to accept this, the employer would be faced with an ultimatum – either forcing the changes to go through anyway or terminating the contract and offering re-engagement on new terms.
This is what London plumbing firm, Pimlico Plumbers, chose to do last month. The organisation reportedly rewrote all of the workers’ contracts and confirmed that if an employee did not agree with the new terms, it would be evaluated on a case-by-case basis whether the worker was kept on.
Recent research shows that over half of employers would encourage their workers to get vaccinated whilst almost a quarter would force their staff to, despite the practice not being legal at this time.
Current figures show that over 12 million people in the UK have received the first dose of the COVID-19 vaccine with all people aged over 50 expected to have received their first dose by May.
Monica Sharma is an English Literature graduate from the University of Warwick. As Editor for HRreview, her particular interests in HR include issues concerning diversity, employment law and wellbeing in the workplace. Alongside this, she has written for student publications in both England and Canada. Monica has also presented her academic work concerning the relationship between legal systems, sexual harassment and racism at a university conference at the University of Western Ontario, Canada.
Not to insist that employees have the vaccination (where this has not been contra-indicated by other health considerations) will all come tumbling down as soon as we have the first case of a covid mortality caused by an unvaccinated employee passing on the infection.
I know that lawyers enjoy legal posturing – that is, after all, how they make their money – but there are times in real life where strong leadership is required, not playing around with the fanciful niceties of “discrimination”.