Uncertainty Over ‘No Jab No job’ Risks Fuelling Employment Law Cases

As millions more people of working age are being offered the COVID-19 vaccination, lawyers at Irwin Mitchell are predicting a rise in employment tribunal claims.

The comments come as the ‘no jab, no job’ debate continues to divide opinion and while the question of what an employer can and cannot reasonably insist on remains unclear.

As the UK COVID vaccination programme gathers pace with those aged over 40 now being offered the jab, employers who insist staff take the vaccine when offered could face challenges on discrimination grounds.

With no legal basis the government can rely on to force people to be vaccinated, ministers have indicated that people will not be forced to have the jab if they don’t want it.

While employers can and should encourage staff to be vaccinated, the government’s position makes it legally problematic for employers to compel staff to attend vaccination centres.

In addition to making workplaces COVID-secure, many employers are considering if it’s a ‘reasonable instruction’ to ask staff to take the vaccine once they’re offered it.

As a matter of contract and employment law, if an employer can establish that asking staff to take the jab is a reasonable management instruction and they refuse, an employer may be able to justify taking disciplinary action for disobedience.

Expert Opinion

“If employers do ask staff to be vaccinated once they are eligible, and take action against those that refuse, we’re likely to see a spike in employment cases as courts try to work this problem out.

“Employers are on firmer ground if they can argue that they want their staff to be vaccinated to protect other members of staff or people they come into regular contact with as part of their role. Examples could include teachers and healthcare workers. But this argument carries less weight for say, someone who works from home and has very limited contact with others.

“If an employee does refuse the jab, much will hinge on why. Someone who has been advised not to be vaccinated on medical grounds (such as some pregnant women) can reasonably refuse. It is going to be the grey areas of religious or philosophical belief that will likely cause most debate.

“Anti-vaxxers would have to show their views are worthy of respect, so are less of a concern than those who may object on religious grounds or have other beliefs that are protected. Here, employers would need to ensure any policy in place is not indirectly discriminatory, however well-meaning it may be.

“Given there is so much risk attached to getting the fine lines in these cases wrong, we strongly recommend employers take legal advice before dismissing someone refusing to be vaccinated. You must consider carefully the reasons for their refusal and look at alternative solutions before dismissing them." Donna Seferta - Partner

The UK government plans to offer a first vaccine dose to every adult by the end of July. It has recently been reported that people under the age of 40 in Britain will be offered an alternative to the Oxford/AstraZeneca vaccine following concerns of rare blood clots.