The ability of employers to enforce a ‘no jab, no job’ policy is a topic provoking debate at present, particularly in the health care sector.
Employers have responsibilities under the Health and Safety at Work Act 1974 to protect the health and safety of employees and other individuals in the workplace. Employers also have a common law duty to take reasonable care to look after their employee’s health and safety. Businesses of all sizes are deciding how to bring their staff back to work safely after many months of remote working, particularly as making demands on staff to have vaccinations is a dilemma both legally and morally.
Employers may want to enforce a policy of mandatory vaccination to protect the health and safety of staff at work but this does not come without risks. From 11 November 2021 workers in care homes and those providing nursing care must be fully vaccinated, unless a specific exception applies. This is helpful to employers in this sector but outside of the care sector, employers face greater difficulty in enforcing a policy of compulsory vaccinations. We can see a greater risk of discrimination claims being pursued. If an employee with a medical condition capable of constituting a disability under the Equality Act refused to comply with a request to be fully vaccinated and the company took action to discipline or dismiss them, this could be problematic for the business. Similarly, an employee with a religious or philosophical belief or a pregnant employee could be wary about having the vaccine and bring a discrimination claim.
The Chartered Institute of Personnel and Development has advised that employers can encourage staff to have the vaccine and highlight the benefits of this. Employers could also draft a policy encouraging vaccination. But employers fear that a "no jab, no job" policy could at best risk resignations or leave them exposed for dismissal and discrimination claims.
To avoid the risk of such claims, employers should be cautious before enforcing a “no jab, no job” policy, refrain from taking a broad brush approach and instead look at the individual circumstances of their employees, whilst considering whether it would be proportionate to enforce a mandatory vaccination policy. Employers should have open conversations with employees and discuss any concerns, whilst also highlighting the benefits of providing proof of vaccination for the protection of themselves and the workforce.