Is ‘No Jab, No Job’ Legal?

Peter Hermes Furian / Anna Leni / Shutterstock

Can employers insist that staff get the vaccine? According to the Telegraph, the question is dividing the Government, with some ministers believing that employers who take a ‘no jab, no job’ approach may be protected by Health and Safety legislation.

Employers can insist that all of their staff get vaccinated against Covid under laws governing health and safety at work, ministers believe…

The idea of ‘vaccine passports’ – which would allow employers to insist upon proof of vaccination – have been dismissed by vaccines minister Nadhim Zahawi as “discriminatory” and “not how we do things in the UK “.

However, the Telegraph understands that the issue is at the centre of a row in Cabinet, with some ministers arguing in favour of the scheme.

Whitehall sources believe that companies who adopt a “jab for a job” stance are protected by current health and safety laws which require workers to protect not only themselves, but also colleagues from harm.

One Government source said: “If someone is working in an environment where people haven’t been vaccinated, it becomes a public health risk.

“Health and safety laws say you have to protect other people at work, and when it becomes about protecting other people the argument gets stronger.

“If there is clear evidence that vaccines prevent transmission, the next stage is to make sure more and more people are taking up the vaccine.”

Worth reading in full.

But wouldn’t this be a breach of the right to consent, whereby the law protects people from receiving a medical treatment unless they’ve explicitly consented to it? As set out on NHS website, consent must be:

voluntary – the decision to either consent or not to consent to treatment must be made by the person, and must not be influenced by pressure from medical staff, friends or family

informed – the person must be given all of the information about what the treatment involves, including the benefits and risks, whether there are reasonable alternative treatments, and what will happen if treatment does not go ahead

capacity – the person must be capable of giving consent, which means they understand the information given to them and can use it to make an informed decision.

This strays into employment law, as well as anti-discrimination law, and it would not be a surprise to see a flurry of lawsuits if an employer insists on workers being vaccinated on pain of dismissal. Economia magazine has a viewpoint on the rules as they currently stand.

According to employment law experts, employers cannot insist that employees are vaccinated unless the circumstances are exceptional. For example, employers in the social care sector may be able to give reasonable instruction for employees to be vaccinated as they are working with high-risk, vulnerable people.

Other sectors such as professional services don’t have the same strength of argument for insisting their workers are vaccinated, as lockdown working conditions have demonstrated that work can often be done effectively from home…

“Employers should encourage, and not compel, employees to have vaccinations”, said Rachel Suff, CIPD Employee Relations Adviser…

“Mandatory vaccination may discriminate on the basis of disability, or religious or philosophical belief. If an employer disciplines or dismisses an individual who refuses to be vaccinated, this carries a risk of exposure to an unfair dismissal claim”, added Rachel Suff.

Employers should always take care that their actions do not breach an employee’s human rights and/or lead to claims for discrimination – particularly on grounds of age, religion, belief, disability, or pregnancy – or for breach of employment contracts…

Leanne Francis, Senior Associate at Pinsent Masons, said: “Mandatory vaccinations could also raise privacy implications. They could be interpreted as interfering with Article 8 of ECHR which gives individuals the right to a private life.

“An employer will need to be able to demonstrate that their interference was proportionate in all of the circumstances and this defence is often nuanced and complex. Employers will also be expected to obtain consent for any work-related medical intervention, in the same way that consent is obtained for referrals to occupational health or drugs and alcohol testing.”

Worth reading in full.


One Response to “Is ‘No Jab, No Job’ Legal?”

  1. ian says:

    If the lockdowns work, why do we need another. If they don’t work, why do we need another.
    If the vaccine works, how can the unvaccinated pose a risk to the vaccinated. Al hypothetical questions of course.