A so-called “no jab no job” policy would be “highly likely” to leave employers at risk of discrimination claims, a leading Midlands law firm has warned.
More than 75 per cent of UK adults have now received both doses of a Covid-19 vaccine, official figures show, leading some employers to question whether they can make it a mandatory requirement for staff to be fully vaccinated.
There are currently only plans for care home staff in England to be required to be fully vaccinated to work from October, but in the US Facebook and Google are among those to announce plans to implement a no jab no job policy.
Sophie Wahba, a Solicitor in Wright Hassall’s Employment Law Team, said employers should tread carefully and take professional legal advice on the issue.
“This could very easily become a dangerous minefield,” Sophie said.
“Making the Covid-19 vaccine mandatory is very different to requiring staff to take a lateral flow test or to wear PPE (Personal Protective Equipment) in the workplace.
“Taking the approach of requiring employees to have the Covid-19 vaccine can therefore be a high risk to businesses.”
However, legally, there is nothing to stop an employer including a term in a worker’s contract to say that having the Covid-19 vaccine is mandatory.
But Sophie says that such a contractual clause or policy stipulating that Covid-19 vaccine is mandatory could leave employers at risk of discrimination claims.
Such claims could arise if an employee is unable to have the vaccine due to a medical condition, or if an employee opts to not have the vaccine due to a philosophical or religious belief.
“In both instances, employers need to be careful that a mandatory vaccination policy doesn’t directly or indirectly discriminate against the employee – which is highly likely to be the case,” Sophie said.
“In addition to the risk of discrimination claims mandating the vaccine could also result in employees resigning and claiming constructive unfair dismissal. There are also data protection and human rights considerations to take into account.
“While it will soon be mandatory for care home workers in England to be fully vaccinated, employers should not see this as a green light or free pass to take the same action and should take legal advice in the first instance.”
While Sophie has advised against mandating the vaccine without taking further advice, she says it is reasonable to encourage staff to have the vaccine to protect the health and safety of the workforce.
The Government has also encouraged employers to reassure employees about the positive impact of taking the vaccine for themselves and those around them, as the best protection against Covid-19.