As the world begins to return to normal and organisations start preparing to return to the office, companies face difficult decisions around employees’ COVID-19 vaccines. Many businesses are considering implementing ‘no jab, no job’ policies for new recruits.
While Downing Street has said it would be discriminatory to force current employees to be vaccinated to keep their job, the justice secretary has said ‘no jab, no job’ recruitment is legal. ‘No jab, no job’ policies could be written in contracts, and new employees would be contractually required to prove they had received the COVID-19 vaccine.
‘No jab, no job’ may be legal, but does that mean you should enforce it?
Companies introducing a ‘no jab, no job’ policy could fall foul of the 2010 Equality Act. While there is nothing legally to stop a business from placing a ‘no jab, no job’ cause in contracts for new employees. If they choose to instate such a clause, companies will have to tread very carefully to prevent discrimination challenges.
Some workers will not accept the vaccine because of religious beliefs, and others may not be able to take the vaccine because of health issues. Similarly, through no fault of their own, many people have not yet received a vaccine. There are concerns it could disproportionately affect young people who are last in line to receive the vaccine. In the case of a ‘no jab, no job’ policy, these employees risk being discriminated against.
If challenged, a poorly constructed ‘no jab, no job’ clause could be shown to be discriminatory. Accusations of discrimination can have huge, irreversible effects on a company’s image and be being highly expensive.
The Public Health (Control of Disease) Act 1984 ensures no individual can be forced to undergo medical treatment, including vaccination. But, this doesn’t legally prevent organisations from asking employees to consent to contractual requirements to undergo vaccination.
Under the Health and Safety Work etc. Act 1974 employers have a duty to ensure the health, safety and welfare of all their employees when at work. A ‘no jab, no job’ policy could be argued as part of an employer’s health and safety duty. However, at the moment it is unlikely that this would mean they can make it mandatory for current employee vaccines.
Vaccines are currently only available via the NHS. Although some companies may have said they want to buy vaccines for their employees, neither Pfizer nor AstraZeneca have plans to sell their vaccines privately. As long as the vaccine remains available only on the NHS, there is nothing a candidate can do to receive it as a priority and companies could risk losing out on valuable talent.
Of course, many employers and employees want to return to the office. Introducing a ‘no jab, no job’ policy has the potential to increase safety and helping the workplace return to normal. Encouragement of the vaccine, not enforcement, is the way to go.