No jab no job – is this discriminatory?

There has been much talk over the recent weeks after several high-profile companies (Pimlico Plumbers) have said that they will introduce revised employment contracts to force workers to be vaccinated and making this a compulsory requirement.

We are yet to review any policies that have been drafted in this way and we would question the legality of making the COVID jab mandatory unless the policy reasonably justifies that it is in place as a proportionate means of achieving a legitimate aim.

Yesterday an official spokesperson for the Prime Minister Boris Johnson said:- ‘Taking a vaccine is not mandatory and it would be discriminatory to force somebody to take one’.

The Public Health (Control of Disease) Act 1984, states that members of the public cannot be forced to take the vaccine. So, the vaccine is voluntary, and the employee must give informed consent.

As Employment Practitioners our advice would be to discuss the reasons why the employee is rejecting the jab and discuss these reasons with them. If there are reasons related to the below, we would wary of dismissing an employee if he/she declines the vaccine: –
Risk of side effects- It is recommended that if you’ve had an allergic reaction to any of the ingredients in the vaccine, you will be advised by you GP against the COVID jab. Overall, having allergies though doesn’t exclude you from getting the vaccine.
Discrimination- if the employee has a disability or a condition that would carry certain health risks in taking the vaccine. Likewise, if an employee declines the jab for religious reasons or if the vaccine contains animal derived ingredients such as a employee that is vegan, vegetarian, Muslim, Hindu etc may refuse the vaccine.

In some sectors such as the NHS, care homes, private health providers, doctors and nurses it maybe viewed that it was reasonable for an employer to ensure that all staff are vaccinated to protect the workforce and patients. In these scenarios it is likely to be decided that any dismissal was fair and reasonable given the circumstances. Each case would need to be reviewed on a case by case basis. However, for staff that can work at home and are not exposing the reminder of the work force and vulnerable patients its highly unlikely a dismissal would be deemed fair within these circumstances.

At present no case has been heard at Tribunal and therefore we would highly recommend seeking advice before changing policies and making any dismissals. Of course, before going down this route you need to follow the correct process.

You may also agree to part ways with the employee by negotiating an exit agreement via a settlement agreement. Especially if keeping the employee would hold risks to the business, patients, staff and customers. Again we would advise seeking advice if you decide to take this step as this conversation would need to be ‘off the record’ and protected conversation.

If you’re an employee or an employer facing a similar situation and your are seeking advice please contact Kalra Legal Group on 0330 221 0684 or send us email on: [email protected].