31 March 2021

No jab, no job – can this be justified?

Tom Martin Senior Associate

Recent headlines suggest that in light of recent events some companies are seeking to implement a ‘no jab, no job’ policy, meaning that employees will not be able to return to the workplace or indeed could be dismissed, if they refuse to be vaccinated.

The UK’s Coronavirus vaccination programme has offered hope to the nation and businesses alike. The promise of immunity has signalled employers to initiate the return of their employees to the workplace.

In an ideal world, business would have a fully immunised workforce, meaning staff, customers and clients are protected, and allowing businesses to operate at full capacity with minimal covid-19 related absences. However, there are a significant number of individuals who are refusing to have the vaccine for various reasons.

To mandate vaccination as a condition of an employee’s return to work poses various risks to employers, who must keep in mind that requiring an employee to be vaccinated without their consent (something the government is not even doing) and as a condition of their return to work, could amount to a significant breach of contract, entitling the employee to a claim for constructive dismissal. It could also be seen to be favouring workers who are vaccinated, creating a situation where an employer is open to claims of discrimination. There are a number of possible types of claim this may involve as there are various reasons why individuals may choose not to have, or not be suitable for the vaccine.

Employers must therefore consider whether or not implementing such a policy can be considered to be a “reasonable management instruction”. There is no hard and fast rule as to whether it will be, and as with many legal issues, the answer will be dependant on the facts of each individual case. Businesses should consider whether a vaccine is necessary in their particular business, whether there are suitable alternatives for each individual concerned, and whether other covid-19 protection measures are sufficient to minimise risks.

Furthermore, and given the sensitivity of the issue, dialogue with those staff who are refusing the vaccine will be key. Employers need to understand each individual’s reasons for not wishing to take the vaccine and consider each case on its own facts. By doing so, employers may be able to positively promote the vaccine and allay any fears the individual may have. Where such discussions breakdown, and employers therefore consider disciplinary action and/or dismissal, it is strongly recommended that legal advice is sought. Such action may be appropriate and justified, but it will be very fact-sensitive and a fair process must be followed.

Whilst the roadmap to “normal” continues to unfold, employers must adopt caution and patience in ensuring an effective return of their employees into the workplace. There is much to consider, and needless to say, any mandatory vaccination policy must not be implemented frivolously, and due consideration should be given to the potential implications and risks of doing so.

Please contact a member of our employment team for further advice and guidance.

Tom Martin, Wilkin Chapman LLP
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