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- Compulsory Covid vaccination – can employers introduce a ‘no jab, no job’ policy?
With the roll-out of the COVID-19 vaccination well underway in the UK, you are likely to be considering how this is affecting your staff and any plans to open up your workplace.
Many UK employers are strongly encouraging their staff to get the vaccine, but without making it compulsory. Some businesses have already taken the decision to make it compulsory for employees to get the vaccine before returning to the workplace, but this decision is not without its risks or complications. Currently this is much more likely to happen in the US than the UK.
Before making any decisions about your policy on Covid vaccinations, it’s important to consider some key questions.
Has the government said it should be compulsory for employees?
The government has stopped short, however, of making vaccination a legal requirement for staff, with the exception of health care workers and those in the care home settings: from April 1st 2022, it will be a legal requirement for all staff who work in health care or a care home setting in England, that is regulated by the Care Quality Commission, to be fully vaccinated, unless they have a medical exemption. The amending regulations will be subject to a 12-week grace period, allowing those working in the health and social care sector the time to meet the new regulatory requirements.
Despite not being a mandatory and legal requirement for other sectors, an increasing amount of employers that require new employees to be fully vaccinated has grown. According to an Adzuna job ad analysis, “the number of UK job adverts explicitly requiring candidates to be vaccinated against Covid-19 has grown by 189% over the past three months.”
While this applies to candidates and not current employees, it is a considerable shift in the job market. Proportionally this is a small fraction of job ads with now roughly 1 in ever 526 job ads , or 0.19%, require applicants to be vaccinated to be considered or onboarded into a new job role in the UK.
What are the risks of making vaccination compulsory for staff?
We advise caution against making vaccination compulsory, as this may expose you to risks and legal complications. These include:
- potential claims for discrimination based on protected characteristics such as someone’s religion or belief, or relating to a disability
- possible claims from employees of a breach of their human rights
- concerns about data protection because you would need to be able to establish whether staff have been vaccinated and would need to hold information classed as special category data under UK GDPR, such as the information from an NHS Covid Pass.
In what circumstances might it be reasonable to require an employee to be vaccinated?
Other than the new legal requirement for staff working in care home settings mentioned above, there may be limited circumstances where it may be reasonable to require someone to have a Covid-19 vaccination to keep their job, for example where the role involves travel abroad. Exploring other ways to minimise risks will be important too, and bear in mind that none of these situations has yet been tested in an Employment Tribunal.
If you were to pursue this route, clear communication and engagement with your employees, including involving any trade unions you recognise, will help, as will showing proper consideration of any reasons employees put forward to explain why they are unwilling to have the vaccination. It will also be important to show why you have assessed that the vaccination is so critical in your organisation.
In these situations, you could also consider making it a condition of employment for new recruits, but take a more cautious approach for existing employees.
Can employers indirectly compel employees to vaccinate?
We wouldn’t advise this, as employees may potentially have the grounds to issue a direct or indirect discrimination claim or claim constructive unfair dismissal if they resign in protest.
A better course of action would be providing employees with impartial, factual information to help them make informed decisions regarding their vaccination, such as the material contained in the government’s employers communication toolkit.
Do we have to give staff paid time off to have the vaccine?
If the vaccination appointment is during working hours, there is currently no legal requirement for employees to be paid for that time off.
However, we recommend that you consider doing so to incentivise employees to get the vaccine. This is likely to be beneficial as it will help protect other staff and customers.
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