Worthingtons Solicitors

No jab – no job? Will the Covid-19 vaccine become an ‘Essential Criterion’ for new recruits?

A large London based plumbing company recently announced its intention to make vaccine compliance part of its recruitment process. The owner defended the position by stating that he is just getting ahead of the curve and that in a few months’ time required vaccinations will be the norm.  Whilst most of the population eagerly await the invitation for vaccination, is it legal to require an employee to be vaccinated?

This is a sensitive subject and one that will require careful consideration in an employment context. To date, the Government has not legislated for mandatory vaccination. ACAS guidance offers that employers should be supportive of employees that wish to be vaccinated but should not force them, although it has acknowledged that it may be necessary in instances where a vaccine is required for someone to do their job, for example where they travel overseas for work.

Employers should be aware of the litigation risks in insisting that their workforce are vaccinated. Dismissing an employee who refuses to get the vaccine is likely to result in an unfair dismissal claim and unless the government were to make vaccination mandatory, an Industrial Tribunal may well find that dismissal unfair and award potentially significant compensation for loss of earnings. Employees who elect not to receive the vaccine due to pregnancy, certain disabilities or on religious grounds may also have grounds to pursue unlawful discrimination claims if they are subject to a detriment or dismissed for not taking the vaccine.

Introducing this requirement to an existing contract of employment, would amount to a change in terms and conditions which would need to be subject to consultation with a view to reaching agreement with Trade Unions and staff prior to implementation. Employers would need to tread carefully to avoid causing an actionable breach of contract eg an employee could resign and claim constructive unfair dismissal in the face of unilaterally imposed change to their contract.

Making it a condition of employment for ‘new starts’ at the commencement of employment would not amount to a breach of contract as the vaccination requirement would be included within the original terms of employment offered. However this would still leave the employer potentially exposed to discrimination claims as outlined above and reputational damage arising from reports or complaints of unfair recruitment processes.

Despite the extensive measures taken to ensure that our workplaces and our working arrangements are as Covid-secure as possible; the vaccine provides a new and greater level of personal safety for workers against the risk of serious illness or death as result of covid-19. Its importance in creating a safe working environment for staff and service users cannot be underestimated and as such it is understandable why some employers would like to see vaccination as a mandatory issue rather than an optional treatment staff are encouraged to take up, when made available to them via the NHS.

The possibility of a ‘vaccine passport’ to cross borders, board a plane or engage in personal services is already under consideration, it remains to be seen whether vaccination will introduced on a mandatory basis or perhaps more likely, whether employers will adopt a policy of providing information and encouragement in workplaces across the UK.

Finally, as vaccination is an issue that can generate heated debate and opposition, it is important to bear in mind that all employees are entitled to be treated with dignity and respect by their colleagues in relation to their decision over the vaccine. No employee should be subject to bullying or harassment, or other unwanted behaviour because of their decision and employers have a duty to take reasonable steps to avoid that occurring in their workplace. If adopting a vaccination policy or communicating with staff about covid-19 measures, it would advisable to remind staff of the requirement to demonstrate dignity and respect to colleagues in relation to this sensitive issue.

Kerry McDonald, is an Apprentice Solicitor in the Employment Team in Worthingtons Solicitors. Kerry completed her studies whilst working as a Legal Executive in the Employment Team from 2017 and is looking forward to progressing her career as a qualified Solicitor with Worthingtons from September 2021.

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