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No Jab, No Job – Can employers require employees to have the vaccine?

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There has been much discussion recently following the UK government’s announcement to require those working in the care sector in England to be vaccinated against Covid-19.

We asked Peninsula, the providers of our Employment Law and Health & Safety advice, to explain the ‘no jab no job’ policy in more detail. Here’s what they had to say:

“No jab no job policies are becoming increasingly common following the introduction of mandatory Covid vaccines for workers and volunteers in CQC regulated care homes in England. But, there are several issues employers must take into consideration if they want to make vaccination a contractual job requirement. To minimise the risks of successful unfair dismissal, constructive dismissal and discrimination claims, they must be able to show that the implementation of such a rule is a proportionate means of achieving a legitimate aim. Essentially, this means that it is a reasonable way of reaching a reasonable goal.

Care home workers in England are legally required to have the Covid vaccine in order to continue working. This requirement could be extended to front line roles in wider healthcare settings, though this has not yet been confirmed. Where no legal requirement applies to have the vaccine, employers will need to rely on a contractual right to enforce it.

Under the Health and Safety at Work Act 1974, employers have a duty to take all reasonably practical steps to ensure the health, safety and welfare of their staff. However, it’s not likely that this will include, for all employers, the requirements for its employees to have the vaccine. The situation is different for affected care homes, whose workers are legally mandated to be vaccinated (or have an official medical exemption) to continue in their roles. Forcing employees in all other sectors to have the vaccine may trigger human rights implications, as well as risks from an employment rights perspective.

An employer’s argument for making Covid vaccinations a contractual requirement can be strengthened by an existing clause within the employment contract outlining that medical intervention is to be administered where necessary, to protect the employee’s health and that of those they come into contact with at work. However, a clause of this nature is rare. Further arguments include considering the industry within which the business operates; in particular, where close contact with others is intrinsic to the role and, as such, creates a high-risk environment. But, employers who are able to implement alternative ways to reduce the risk of exposure, for example, by maintaining social distancing and mask wearing, may not be in a strong position to require employees to have the vaccine. This will be of significant importance to organisations who have not had any Covid-outbreak issues, as employees may be able to argue that other measures are providing adequate protection, so vaccination is not reasonable.

Some employees will also have valid grounds for refusing the vaccine so will receive legal protection for action taken against them for this reason. For example, those with underlying health issues or pregnant employees may be eligible for a medical exemption. Other employees may refuse the vaccine due to their religion or belief. It is important, therefore, to fully understand why the employee is refusing before considering any further action.

In situations where employers have satisfied that the request is reasonable, and can clearly evidence this, they can begin the process of implementing such requirements. Organisations must remember that the introduction of a contractual vaccine clause will be a change to employee’s existing terms and conditions, therefore, they must seek the agreement from their workforce to make changes. This can be done by consulting with employees, to explain the proposed changes, the reasons for them and the timeframes for implementation. Employees should be given the opportunity to ask questions and raise concerns throughout this process. Where the changes will affect 20 or more individuals, collective consultation rules may apply.

Employers should also be reasonable with their timeframes in this situation; some employees may have already had their first vaccine and are waiting on their second. Or, some may be happy to comply with the requirements but haven’t yet had any vaccines, so need to wait at least 8 weeks between both doses to be fully jabbed.

Once a full consultation process has been completed, and adjustments made for those with reasonable grounds for refusing vaccination, action can be taken against those who cannot provide any evidence. The first consideration should always be whether there are any alternative roles the person can be redeployed to, to allow them to continue their employment with the company. If there are none, employers may be able to move forwards for a dismissal under Some Other Substantial Reason (SOSR). It’s important that employers keep a detailed record of all discussions and documentation utilised throughout the process, as this may letter be used as evidence should claims arise.

Ultimately, it is possible to introduce mandatory vaccination as a contractual requirement. However, organisations must make sure that this is a reasonable request and follow a full and fair consultation process before considering redeployment or dismissal.”

Remember, if you’re a Fish Insurance policyholder, you might have access to HR support from Peninsula themselves. This benefit is included in Care Protect, Healthcare Protect, and Independent Living Full Cover policies.

To access this support, simply call 0344 892 2480 and quote your policy number (stated on your policy schedule) and the account number FIS033.

This advice was provided by Peninsula on 1st November 2021.

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