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The virus has taken over the livelihood and morale of many businesses and the recent spike in employees being ‘pinged’ has left employers in a difficult predicament over how to proceed. With the vast uptake of the COVID-19 vaccination, the debate has arisen as to whether proof of having been ‘jabbed’ will become mandatory in the workplace and indeed whether such a mandate is lawful.
Currently, the UK Government cannot force anyone to have the vaccine for any purposes whatsoever, including as a requirement to work. Further, everyone has the statutory right not to be required to have medical treatment and this right specifically includes vaccinations. However, the Government have allowed some discretion to employers, meaning it is not illegal for your employer to require proof of vaccination to employ you. New laws have been introduced relating to care homes and from the 11th of November 2021, anyone working or volunteering in a care home will need to be fully vaccinated unless they are exempt.
Although a vaccinated workforce has its advantages: a safe working system, less risk of employee isolation and employee ill health, this is not to say that employers will exercise this discretion and make vaccination a requirement. Indeed, any employer who attempts to do so may well open themselves up to legal challenge in the courts.
With a requirement to be vaccinated comes a major risk of a rise in discrimination cases. Within the UK law at present, to be discriminatory, the case must be centred around a ‘protected characteristic’. Not wishing to have a vaccine is unlikely to fall into a protected characteristic however there are several ways in which discrimination could be claimed. An obvious example would be those who are medically exempt from having the vaccine. A not so obvious example would be the hesitancy of pregnant women to receive a vaccine.
One thing to note is that requiring new starters to show proof of vaccination is potentially a route that employers may prefer, as it does not involve the risk of an unfair dismissal claim as would requiring an existing employee to show such proof. Although even taking such a route, if a potential employee can show discrimination, they are still able to make a claim.
A spike in the number of those being suspended on medical grounds is also a reason that the requirement currently seems unlikely.
It is possible that we will see the requirement of vaccination evident among certain fields such as Healthcare and Travel. Airlines already require proof of vaccination from passengers before flying, so it seems logical that cabin crew and other ground staff may see the policy implemented at work. A requirement to show proof of vaccination to work in the Healthcare profession is arguably more realistic than other fields.
A change in job specs for those who are unable to get the jab is also an interesting point of consideration. Those who fundamentally will not be vaccinated, perhaps due to medical reasons, may see the introduction of differing job specs to cater for an unvaccinated workforce.
A major consideration on the part of businesses will be if bringing in this requirement will affect staff morale. Compulsory vaccination is also not required among the public and there appear to be no signs of the UK Government enforcing this. Alternative routes to ensure a safe working environment, such as those we have been living with over the past 18 months: social distancing, masks, hybrid working, are all less invasive on team morale as well as less risky to employers.
With the vaccine currently not necessary to do any job, it begs the question over whether implementation of a ‘no jab no job policy’ is realistic. With all considered, it seems unlikely that this policy will be implemented nationally, though this is not to say that employers will still be given full discretion over the individual procedure.
Any employer looking to implement a “no jab, no job” policy should seriously consider the legal implications of doing so. Blanket policies are likely to be challenged and likely to fail and any policy would have to be worded exceptionally carefully to avoid legal challenge.
As this area is so new, currently there is no case law surrounding the same and it will be interesting to see how this issue plays out in the courts when it inevitably ends up there.
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