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22/02/2021

Law offers no clear cut position on ‘no jab, no job’ controversy

Helena Morrissey Colour

Employers are already voting with their feet as far as the “no jab, no job” controversy is concerned, a leading Midlands employment expert is warning.

Helena Morrissey, director and head of employment and HR law at Thursfields Solicitors, said there was a risk that the legal position on whether employers could insist employees are vaccinated was likely to lag behind by as much as two years, given delays in the judicial system.

“On the face of it, insisting your staff have the jab, or refusing to employ applicants who won’t be vaccinated, is potentially discriminatory.

“But equally, employers have a duty of care to all their staff, their customers and their suppliers.  There may be certain situations in which insistence on having the jab can be fully justified.  The reason for refusal will also be a factor in considering whether refusal is reasonable or not.

“For this dilemma to be resolved, we may have to wait 18 months to two years until it has been tested in an employment tribunal – and we are seeing this length of delay in cases reaching tribunal exacerbated by the pandemic,” she said.

London-based Pimlico Plumbers has already set out its stall, insisting the company will not take on new employees who have declined to be vaccinated on non-medical grounds.

Justice Secretary Robert Buckland has cautioned against employers insisting that existing staff must have the jab, but said that, if it were written into their contracts, it could be possible to make it a condition of employment for new staff that they are vaccinated before they can start work.

But he admitted the issue may have to be tested in law.

At the same time, the Prime Minister’s official spokesman has made No. 10’s position clear. “Taking a vaccine is not mandatory and it would be discriminatory to force someone to take one.”

Helena Morrissey said the dilemma placed some employers in an almost impossible situation and businesses are having to make decisions despite conflicting guidance and commentary on the issue.

“How are care home owners supposed to respond, with a duty of care to their elderly clients, if staff refuse to have the jab?

One company, Barchester Healthcare, has already stated on its website: “With regards to our staff, we are doing all we can to reassure and encourage those who are a little more reticent to have the vaccination, and we are also ensuring that all new staff must have the vaccination (if they medically can) before starting work looking after our vulnerable residents and patients who are in our care.”

She said the situation was also exacerbated by the fact that a “no jab, no job” policy would disproportionally affect young people, who are likely to be the last to be vaccinated.

“Employers will have to assess each job and analyse the health and safety risk before introducing such a clause into contracts, as failure to do so would make it possible to challenge the proposed contract as unfair or discriminatory.

“Given all of the above, it is very difficult for employment lawyers to give definitive advice, which is naturally what their clients are seeking.

“At Thursfields, our advice is that every decision  should be clearly documented and we would urge any employer contemplating issuing new contracts, amending existing ones, or making any declarations in relation to vaccination to seek professional advice on their particular situation.  It is likely that the lawfulness or otherwise of vaccination measures will be determined on a case by case basis and it is important to assess all the relevant factors before taking action.”

Helena Morrissey can be contacted on hmorrissey@thursfields.co.uk or 0345 20 73 72 8.

Helena Morrissey

Helena Morrissey,

Director, Employment & HR Law

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