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There has been much debate for some time now about whether employers can legally and reasonably require their staff to be vaccinated against Covid-19.

By Natasha Smith, Senior Associate

There has been much debate for some time now about whether employers can legally and reasonably require their staff to be vaccinated against Covid-19 to allow them to safely attend the workplace. The somewhat catchy slogan ‘no jab, no job’ has been widely used in the press with a range of views being offered by businesses and individuals arguing for and against the concept.

As the vaccinations programme is not compulsory and it is down to the personal choice of each individual whether to have the vaccine or not, where does this leave employers who have concerns about operating their businesses safely with unvaccinated staff?

Some employers, including a well-known plumbing business, have made their views clear - that the benefits to the wider public for having such a contractual requirement for any new members of staff who visit customer’s houses to perform plumbing services, outweighs the potential legal issues. However other employers may choose to take a more cautious approach to this issue, perhaps at least until some case law has been developed by the Employment Tribunals.

Whilst the Government may have entirely justifiable reasons for not making the vaccination programme mandatory for all (and this article is not the appropriate place to detail those) it inevitably places employers in a very difficult position with some very difficult decisions needing to be made about how they navigate this extremely complex issue in line with employment law.

The Equality and Human Rights Commission (EHRC) earlier this year warned employers to be extremely careful if they planned to adopt a blanket policy over vaccinating staff. They did, however, offer their support for vaccinations to be made compulsory for care home staff, with the caveat that there would need to be some important safeguards in place to ensure the requirement remains proportionate and minimises the risk of unlawful discrimination or breaches of care workers’ human rights.

For example, they stated that steps would be necessary to remove the risk of indirect discrimination for workers who are unable to have the vaccine for medical reasons. It will also be extremely important to make access to jabs easy for all workers - making sure there is no financial detriment resulting from having to be vaccinated, such as loss of pay if they suffer side effects and need to take time off work.
Following the backing offered by the EHRC, the Government confirmed that it would be making it compulsory for all care home staff to be vaccinated by 11 November 2021, otherwise they face losing their jobs.

The full details of how employers operating care homes have approached this with their staff have not yet been released, however it is clear this is not a straightforward matter and we expect a significant number of employment claims being contemplated by care home staff who simply do not agree (or may be unable) to be vaccinated.

Whilst the Government’s rationale for introducing such a highly controversial measure may be one of helping to solve the issue of protecting the health of the most vulnerable members of society, it is also likely to have a significant impact on the future of the social care industry for decades to come, given the recruitment and funding difficulties the social care industry already faces.

It also raises the question of where the line will be drawn and whether compulsory vaccinations will also be required in other industries that are considered to be frontline (i.e. those working for the NHS/emergency services/teachers etc.) Is this decision by the government ultimately going to result in vaccinations being made mandatory across the UK via the ‘backdoor’?

Given the strength of opposition towards compulsory vaccinations across the board, we are likely to be a long way away from all employers being able to enforce the requirement for staff to have had the vaccination (and there is always the likelihood this will never be considered reasonable for certain businesses) however we expect the government’s decision in relation to the care industry to at the very least pave the way for other industries to start to consider how such a policy could or should be implemented lawfully in their workplace.

This is an extremely complex area, which is evolving as the pandemic continues to develop and, therefore, we encourage businesses to contact the experienced employment team at CooperBurnett to discuss any plans they may have to implement any such changes to the contractual terms and conditions of their staff.

If you would like to discuss any of the above issues or any other employment matter, please do not hesitate to contact Joseph Oates on email: jmo@cooperburnett.com or Natasha Smith on email: nes@cooperburnett.com or tel: 01892 515022.

This blog is not intended as legal advice that can be relied upon and CooperBurnett does not accept any responsibility for the accuracy of its contents
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October 14, 2021
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