Can your business legally have a 'no jab no job' policy?

Can businesses legally put a 'no jab no job' policy in place? Freeths LLP Senior Associate, Toby Pochron outlines the legal implications and how employers can discuss COVID-19 vaccinations with their employees without causing potential discrimination issues.

With the growing shift away from home working and the rapid rollout of vaccinations, there is an increased focus on whether employers can implement no jab no job policies as part of other steps to create a COVID-19 secure workplace.

But before a business jumps to drafting no jab no job policies, there are several tricky areas to navigate to ensure that the policy does not breach any employee or worker rights.

Can your business put a 'no jab no job' policy in place?

The first consideration is: can a business actually put in place a mandatory vaccination policy? At the moment, the only sector in which the jab will be mandatory is in regulated care homes, with the requirement coming into effect on 11th November. Further details on the impacts of this requirement and the exceptions can be found on the Freeths website.

The government has intentions to consult on whether the requirement for vaccination is extended to cover those who are workers in the wider health and social care sectors, but has made no comment to extend the legislation beyond these groups.

Draft your policy with caution

Although there are no COVID specific regulations requiring a no jab no job approach, businesses can still implement their own policy on the grounds of a duty of care to employees. If a business believes it is necessary for staff to be vaccinated, then a policy is a good way to go about it.

However, creating and executing mandatory no jab no job policies with little flexibility could create the risk of employment tribunal claims. Therefore, businesses may want to consider a more voluntary approach to a vaccination policy.

The drafting of any type of vaccination policy should be approached with caution, in conjunction with discussions with employees or trade unions and with legal advice.

What do businesses need to look out for legally?

There are several potential legal pitfalls to avoid when implementing a no jab no job policy, which makes it highly important to seek legal advice if there is any doubt surrounding the following.

Discrimination

A mandatory vaccination no jab no job policy has the potential to amount to direct or indirect discrimination as it could disadvantage the majority of protected characteristic groups due to their ability to get the jab.

Although employers may have the legitimate aim of protecting the health and safety of their employees, a vaccine policy could be difficult to prove as a proportionate measure when there are less discriminatory COVID-19 secure guidelines that workplaces can be following. The Tribunals are yet to rule on vaccination policies in relation to discrimination claims.

This need for caution with implementing a no jab no job policy also applies to other policies that businesses may bring in relating to COVID secure workplaces and the vaccine, such as refusing to allow unvaccinated individuals into the office.

Human rights

There is potential that a vaccination requirement is an unnecessary invasion of an individual’s Article 8 right to privacy. This may be the case as businesses still have to have COVID-19 secure guidelines in place for employees to follow, which are less invasive ways to minimise the risk of transmission. There may also be employees who can rely on Article 9 if they refuse the vaccination on grounds of religion or belief.

The Parliamentary Assembly of the Council of Europe passed a resolution in January 2021 regarding COVID vaccines. The resolution states that the vaccination is not mandatory and that nobody should be pressured or discriminated against because of it. Although this is not binding law, it may inform the decisions of any court considering the human right implications of a vaccination policy.

Data protection

Requiring a vaccination also means that employers need to consider the implications of processing their employee’s vaccination data. The processing can be lawful as long as employers assess why the data is being captured, why it is necessary to capture the data, and if there is a lawful basis.

Businesses also need to:

• Be transparent with employees on what the data is being processed for, this may require an update to the company’s privacy notice;
• Only collect the minimal amount of data required, which will likely just be yes/no;
• Ensure that processing of information is done fairly and does not result in any unfair or unjustified treatment.

Weighing up the pros and cons of a policy

There are several positives of implementing a vaccination policy; it would create another level of protection from transmission in the workplace, while providing assurance to staff of their safety. It also provides businesses with a document on which they can refer to and enforce.

Share HR documents with your staff and track when employees have read and acknowledged policies with document management software

However, creating a blanket policy that mandates vaccinates could result in negative publicity for the business and tribunal claims. The compromise is to enact a policy with the positives but with less risk, by having a more flexible approach and being reflective of the workplace and industry.

Other alternatives which could bolster a voluntary vaccination policy would be to encourage employees to get the vaccine by offering time off to attend appointments and providing information on the vaccine. Public Health England have published a helpful guide with ways to encourage uptake of the vaccine and resources to help.

Read more from our blog

How will the pandemic continue to affect employee holidays?

5 ways to support mental health as staff return to the workplace