Companies in the UK are looking to implement ‘no jab, no job’ employment contracts for current and future employees. Will this be the future?
Before the Covid-19 pandemic, this is a subject that would have probably never crossed our minds. But now this is soon to become a global conversation. British business is at the forefront of the debate, with the UK’s vaccination programme among the most advanced in the world.
By 1 April, over half of all adults in the UK had received their first vaccine shot, and the UK government confirmed that it hopes to offer every adult a first dose of the vaccine by 31 July.
What’s the government’s stance?
The government acknowledged that it would be “up to businesses” if they wanted workers or customers to hold coronavirus vaccination passports. But a clear stance on this is yet to be taken, as there are obvious concerns over coercing people into getting the vaccine, given the legal and ethical questions that follow.
Some ministers expressed fears that such passports could lead to discrimination in the workplace against people who cannot, or will not, receive a Covid-19 jab.
What does this mean for businesses?
Until further guidance is provided by the government, we expect employers will proceed with caution before implementing mandatory requirements in their employment contracts or requesting proof of vaccination from existing employees. Particularly as it could leave them open to legal claims of discrimination if workers have refused jabs for medical reasons, pregnancy, disability or religious beliefs.
In addition, another pertinent question is how employees would be expected to demonstrate they have taken the vaccine. Requesting highly sensitive medical records may not be desirable or practical for either party and create a data protection nightmare. However, international travel amongst other things is likely to be restricted without a vaccination, so this may have an impact on certain roles regardless.
Will Covid passport technology be used?
In January, trials began for a new Covid-19 passport technology by biometrics company iProov and cyber security group Mvine, with funding of £75,000 from Innovate UK, a government agency that funds business and research collaborations. Technology like this will make it easier to demonstrate vaccine uptake. Also, as conversations regarding vaccine passports increase over the coming months, such innovation and use of this in other sectors of the economy – such as retail, travel and hospitality – will undoubtedly soften the conversation in respect of use in the employment sphere.
Can you force employees to take the jab?
Simple answer, unless it’s in their employment contract, no! Any unilateral change to a contract to enforce this would be deemed an unfair dismissal. Even if it’s in a policy or the contract this would still need to be approached carefully to avoid any potential discrimination – such as only asking older employees to have this or forcing someone against their religious beliefs to take it. There is also the issue of what if it causes an injury, who’s responsible?
Can you get treated differently for your vaccination choices?
Employers may ask those who are not vaccinated to undertake different roles or become home-based. If this is a policy enforced without discrimination and with evidence of a risk assessment deeming this necessary to protect staff it could be permitted. However, staff could potentially have a claim if their salaries are reduced for example, or their role is considered a demotion, or you replace them, essentially making their role redundant. Again caution, advice and transparency will be key.
Like any employment position always review the contract and policies first, speak to each other to see if an agreement can be reached and if in doubt take advice. Also, it’s important to stay up to date and follow the government guidelines very closely.
Acas guidance on supporting staff to get the Covid-19 vaccination:
Karen Holden is CEO at A City Law Firm
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