'no jab, no job'

By Martin Williams, Partner. Head of Employment Law

In many respects the vaccine is seen as the answer to the problems that we have with respect to the coronavirus pandemic. Is it really a panacea? do we require compulsory vaccination for all those attending the workplace?

There is nothing in law that requires individual employees to be vaccinated to attend work, even for those who work in the healthcare sector. This does not mean to say certain employers will not seek to require their employees to have a vaccination to attend the workplace. This has been the case in the social care sector, and this is one area where the government is conducting a consultation on the possibility of mandatory vaccinations.

It may be that the government will look at this issue more widely. Rumours have been circulating but there will be resistance to such a move. The recent Queen’s Speech did not mention anything about comprehensive legislation being introduced to mandate vaccination in the employment context. Indeed, employment matters were ignored with the expected Employment Bill failing to appear.

If matters are to be left up to individual employers, one must look at the context for any stipulation for workers to be vaccinated. With many employees working remotely there is an alternative to the workplace setting where the role is not location specific. As moves are made to get more people back into places of work employers should make sure that the health and safety of employees is paramount.

Vaccination may not give a 100% guarantee that an individual will be safe from contracting the virus and, equally, that

they will not pass it on. If there is to be any compulsory vaccination requirement for the workforce, employers will have to consider whether it is necessary. As of writing, it is expected that social distancing restrictions will be lifted in the latter half of June, though this may not be confirmed until the middle of June. The resurgence of the virus in the guise of the so-called Indian variant means that restrictions could be in place for some time. In any event, any responsible employer will want to be cautious, bearing in mind the duty of care they have towards those they employ.

It is not surprising, in a situation where people fear getting ill, that some workers may feel that they do not want to work in proximity with someone else, unless that person has been vaccinated, even if other measures are in place. In the end a balance will have to be struck.

It is possible that some employees will feel peer pressure from their colleagues about not getting vaccinated. This could result in somebody resigning and claiming constructive dismissal. Equally, it could be that employees will refuse to work with those who are not being vaccinated. Context will be all important.

It may be that some people will argue that they are being discriminated against. The general roll out of the vaccination is according to age and medical condition. It could be argued that a requirement that somebody receive the vaccination to work is discriminatory by reason of age.

There may also be discriminatory issues because of someone having a philosophical belief that vaccinations should not be made compulsory. One would have to look at the basis for that thinking and whether it was a cohesive, serious, or cogent reason for doing so. Additionally, consideration would have to be given as to whether such an argument is worthy of respect.

Will an employer want to introduce vaccinations knowing that they could be a prospective test case? It seems likely that employers will avoid introducing a “no-jab no-job” stipulation unless there is a very strong need for doing so.

In the end, with vaccination, we do not necessarily have a panacea for all that ails us.

Gil Kahana Founder of ChattyFeet

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