Debates have started around mandatory vaccination and the huge impacts this could have on the workforce. We explore the legal implications for businesses that try to enforce a ‘no jab, no job’ policy.
Currently, the Government have confirmed that all staff within care homes have 16 weeks to receive both jabs or else they potentially run the risk of losing their jobs or a redeployment, this also could be extended across further within the NHS.
We are yet to see this hit other sectors, although a plumbing company stated they would be enforcing this rule, and yet it has not been executed
Businesses need to consider the legal implications and unfair dismissal they could face, ranging from human rights violation, discrimination to indirect discrimination under the Equality Act.
There is no factual evidence at this stage to consider vaccinations reduce transmission, merely that those vaccinated are unlikely to experience the most severe symptoms.
What Specific Laws Protect Employees if they Refuse a Vaccine?
The UK remain signed up to the ECHR, and the Human Rights Act 1998 forms part of domestic legislation, despite Brexit, so the laws below are applicable:
Any employee who rejects the vaccination because of their religion could rely on Article 9, which states: “Everyone has the right to freedom of thought, conscience and religion.”
Mandatory vaccines could be in breach of the European Convention of Human Rights (ECHR). Article 8 provides the right to privacy, and mandatory vaccinations could be considered an unnecessary invasion of this privacy as there are other, less invasive ways to minimise the risk of transmission in the workplace, such as social distancing and wearing a mask.
Article 14 can also be relied upon as it states that those who do, should be able to reject the vaccine without facing discrimination.
Equality Act 2010
There are also several ways of implementing a ‘no jab, no job’ policy which could amount to indirect discrimination in relation to protected characteristics, including possibly age, disability, pregnancy, or religion.
Employers could face claims of age discrimination, if they ask employees who have not yet had both doses of the vaccine. If someone has long Covid, which could be classed as a disability under section 6 of the Equality Act, they have been advised not to have the vaccine.
On 16 April 2021 the Joint Committee on Vaccination and Immunisation (JCVI) advice was updated to confirm pregnant women should be offered the vaccine; however, it will then be an individual choice.
Making vaccinations mandatory for anyone with protected characteristics could open employers up to indirect discrimination suits.
There will be some companies that feel strongly and would like to proceed with the mandatory jab policy, however, we are unlikely at this stage to see the ‘no jab, no job’ policy outside of the health and care workers in the immediate future.
My advice for employers is to ensure Covid-Secure measures are in place and continue to prioritise the safety of their staff, as well as communicate with them to understand what they’re comfortable with, what we also need to consider with any employees that are vaccinated there is nothing in the HSE or UK government’s Covid-secure guidance that suggests that once staff are vaccinated, Covid secure measures will no longer be required.