HR advice
March 16, 2021

No jab no job – it’s catchy but is it legal?

With the UK Covid vaccination programme speeding ahead like an express train, employers are inevitably starting to think about imposing a blanket requirement on their existing staff and new hires of ‘no jab, no job’. After all, sensible employers will want to take steps to ensure that their workplaces are safe for their staff and customers, and as the Covid vaccination is freely available this seems like an obvious and sensible approach.

What are the risks of this kind of policy?

The legal position is likely to be different for new staff as compared to existing staff, but both should be approached with caution and a ‘one size fits all’ rule should be avoided. Not everyone is able to receive the vaccine, for example people with severe allergies and pregnant women. Others may refuse to have it on religious grounds.  Many young people would also be unfairly prejudiced by a ‘no jab no job’ policy which is imposed now because they may not be offered the vaccine for many months to come.

Imposing this kind of blanket requirement on your existing workforce could create the risk of a number of different legal challenges. These include constructive dismissal and unfair dismissal if the employee has 2 years’ service or more, and breach of contract and discrimination regardless of length of service.

Any demand by an employer to know whether a member of staff has been vaccinated also raises questions about employee privacy and the handling of medical information which carries additional obligations for employers under data protection law.

Where new hires are concerned, there is nothing in law to stop employers from making the offer of employment conditional on vaccination and it is up to the individual to decide whether or not they want to take up an offer of employment on those terms.  However, businesses would do well to take on board that this kind of recruitment practice could be called out as discriminatory, especially if it’s not justifiable for sound objective reasons which are well evidenced and clearly linked to the job and the needs of the business.

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