"No jab, no job" contracts

In the past week there have been stories about employers drawing up contracts of employment that set out the principle of no jab, no job. Last month we considered how enforceable it was for employers to make it mandatory for all employees to be vaccinated. Our advice on this was that this approach presented risks due to the potential for claims of discrimination by individuals with disabilities, underlying pre-existing health issues and pregnant employees – all of which might prevent them from taking the vaccination.

But how might this differ if it is written into the employment contract and job offers are dependent on candidates agreeing to a vaccination?

If we look at the legal context there are no statutory provisions that could force employees or job applicants to get vaccinated. Any medical treatments such as a vaccination require an individual’s informed and voluntary consent. There are also individuals that may claim anti-vaccination positions due to personal beliefs or health claims and be further protected by Human Rights, Equality Act 2010 and Health and Safety at Work Act 1974.

Advertising a job vacancy as a “no jab, no job” position runs a risk of claims from applicants.

Any attempt to change existing employee contracts poses similar risks. But if we look to the future there are factors that might push employers to implement these contracts, such as:

• Employer duty of care to all staff – If all staff are vaccinated, then the risk of catching Covid-19 in the workplace is diminished. Employers are required to provide and maintain a safe place of work for all employees.
• How does a vaccinated employee feel having to work alongside a colleague that has not been vaccinated? We are quick to look at this from the perspective of the employee refusing vaccination but what about the compliant employee and the position they are put in by being asked to work with a non-vaccinated employee?
• The needs of clients – Clients in the care sector, NHS or education establishments may implements procedures whereby your workers (e.g. engineers or construction personnel) can only be admitted if they have been vaccinated.
• The cost and operational benefit of vaccination leading to lower staff absence from self-isolating or due to the virus itself.

These points make a stronger argument for a “no jab, no job” contract.

But there must always be exceptions and younger workers currently without access to vaccines might claim discrimination if they are refused a job because they do not have the option of receiving a vaccination.

It is likely to be the care sector where we see a contract change first. Here the requirement becomes easier to justify as it is needed to protect and maintain the health and safety of residents.

We have a reasonableness test to consider and ultimately this needs to be tested through the tribunal system.

Source: Gavin Parrott