Google Adwords 0808 278 1398 Bing Ads 0808 274 4482

No jab, no job? The legal implications for employers

Lisa Aitken, employment law solicitor at Moore & Tibbits looks at the legal implications the ‘no jab, no job’ has for employers.

On the 11th November 2021 it became law that anyone who works or volunteers at a Care Quality Commission (CQC) registered provider of accommodation for those requiring nursing or person care in a care home must be fully vaccinated against coronavirus unless they are exempt.    The vaccination requirement also applies to people who go inside a care setting such as professionals and tradespeople, hairdressers, beauticians and friends and relatives who enter the indoor setting.

Care homes will need to include the vaccination requirement in any recruitment policies and job adverts and take into consideration any medical exemptions during the recruitment process.

The government has announced that from 1 April 2022, vaccination against coronavirus will also become mandatory for health and social care workers unless they are exempt.  This applies to those involved in patient care eg. doctors, nurses, and dentists as well as those who may have contact with patients during the course of their work such as receptionists, porters, cleaners etc.

Can an employer dismiss an employee who refuses to have the vaccine?

Other than the care and health and social care sectors in England, there is no legal requirement to be vaccinated against coronavirus.  There may however be some organisations where vaccination will be a requirement for an employee to carry out their role such as if an employee needs to travel to another country which requires vaccination requirements to be met.

Any blanket policy by an employer however, requiring all staff to be vaccinated could be considered unlawful and pose discrimination and health and safety risks.

An employee’s contract terms must always be factored in to ensure any alternative option to dismissal has been fully considered.  If an employee has refused to be vaccinated and is not medically exempt, care must be taken in relation to each individual employee’s reasons for not having the vaccination, whilst being aware of any potential discrimination issues.  Employers requiring employees to be vaccinated without their express agreement could amount to repudiatory breach of contract entitling them to claim constructive dismissal.

In sectors where compulsory vaccination is not a legal requirement, an employer cannot force an employee to be vaccinated without their consent.

Employers need to be mindful of being exposed to potential unfair dismissal claims if they have not followed a fair process or do not have a justifiable reason for dismissing the employee refusing vaccination.  This could be on grounds such as disability age, religion or belief for example.  An employment tribunal is unlikely to find a vaccination requirement reasonable unless it is legally required or essential the employee’s role. 

Review your policies

It is essential for employers to consult with their staff and/or trade union before introducing a company vaccination policy.  Employers in the health and care sectors should ensure their policies clearly outline the vaccination requirement for staff and also for those visiting the care home and that entry will not be permitted without evidence of vaccination or a medical exemption.

Can an employer request an employee’s vaccine status?

A person’s vaccination status is classed as special category data, ie. it is their private health information.  An employer’s use of this data must be fair, relevant and necessary for a specific purpose to comply with data protection requirements.

In some circumstances, an employer may be able to justify asking an employee their vaccination status if their work means they could pose a risk to a clinically vulnerable individual.  The information should not result in any unfair or unjustified treatment of employees and should be kept secure and limited to only those that reasonably need to know the information eg. HR and managers.

Employers need to be mindful of difficult situations which may arise eg. if an employee raises concerns for their health and safety if they believe that a colleague has not been vaccinated. In this situation, personal information relating to another employee should not be disclosed by the employer.  An informed risk assessment should take place and the employee’s individual concerns should be addressed to ensure they feel adequately protected at work, eg. alternative working areas of reduced contact with others.  The vaccination status of employees should not be disclosed to others.

How employers can help

Employers can try and encourage and support their staff to be vaccinated without making it a requirement by various means.  This could include:

  • Offering staff paid time off to attend the vaccination appointment
  • Paying the usual rate of pay where staff are off sick with vaccine related side effects
  • Consider an extra day’s holiday if double vaccinated.

Lisa Aitken | Solicitor

This information is correct as at 7th December 2021.  It should not be taken as legal advice.  This is a complex topic and employers are encouraged to seek specialist legal advice.

Expert legal advice you can rely on,
get in touch today:

Please let us know you are not a robot