No Jab – No Job

Let’s start with the basics. The employer cannot compel a member of staff to be vaccinated. No one, not even the government can do that. So, no one needs to fear being dragged to the doctor’s surgery under armed guard.

The most likely scenario is that an employer requires all its employees to have the vaccination and those that do not are dismissed or not taken on. But, will this be a fair dismissal (or  non-employment) or will we see a raft of claims in a year or two’s time when these matters finally get to the Employment Tribunal?

Perhaps, the first thing to consider is why the employee has not been jabbed.

Vaccine Hesitancy

This is where the employee doesn’t want to be vaccinated. This may be because they’ve read that Bill Gates is going to microchip them or just don’t trust in vaccines.

Anti-Vaxxers

These are strident individuals with a cause. They may not only refuse a vaccination but try and convince others not to have the jab too.

Religious Reasons (Discrimination)

This falls into two categories. Religions that do not allow vaccinations (and there are so few as to dismiss this) and those who believe that the vaccines contain alcohol or meat products. Assuming that none of the vaccines in the UK contain any of these products, this then becomes a vaccine hesitancy issue.

Disability Reasons (Discrimination)

An employee who refuses the jab because they are prone to anaphylactic or toxic shock may have a valid excuse not to be vaccinated. However, just being concerned that there might be side effects looks like vaccine hesitancy again.

Too Young (Discrimination)

The youngest age groups may not be vaccinated until later in the year. If a policy is brought in too soon this may be indirect age discrimination

So can the Employer say “Get jabbed or no job?”

It depends.

One point to make here is that even if it is unlawful to dismiss, then that doesn’t mean that the employer won’t do it. It is very difficult to get employer (or anyone else for that matter) to do the right thing. It’s just that if they do dismiss unfairly, employers expose themselves to an unfair dismissal claim.

If the employer wants to dismiss, they are going to have to go through a fair procedure. Failure to do so will result in a ‘technically unfair dismissal’. This would include writing to the employee, having a meetings, allowing them to bring a workplace colleague, making a considered decision and allowing an appeal.

Then the employer needs a good reason for requiring the employee to be jabbed. If the employee usually works from home or has very little contact with colleagues or customers etc. AND other reasonable precautions can be taken (e.g. the employee wears a mask) then dismissal will probably be unfair. However, if the employee is NHS or working in a care home, the failure to get a jab may put others at risk and therefore they would have a much better chance of successfully defending a claim.

The employer will also need to look for alternatives to dismissal before terminating the contract, so if a care worker could be transferred to office work and have no client contact then this should be considered.

Even where there is a genuine reason for not wanting a jab – a medical reason or alcohol is present in the vaccine, then it may still be possible to dismiss fairly, if the reason is compelling.

The requirement to require employees to be vaccinated may diminish where herd immunity is reached. If only a few people remain un-immunised then the risk to the general and workplace population is significantly reduced. We don’t compel parents to get their children vaccinated against measles.

If there is a dismissal employer will have to convince an Employment Tribunal that:

  • It was fair to dismiss in all the circumstances (this may include dismissing anti-vaxxers who encourage others in the workforce to have the jab or even a venerable who may endanger the lives of others)
  • That a proper procedure has been followed
  • That there is a significant risk to others (staff or, say, patients)
  • No other non-person facing role was available.

Failure to convince a Tribunal of this will result in a finding of unfair dismissal. However:

  • Only those with two years continuous service will be able to claim
  • The employee can only claim up to a year’s worth of wages (and it may take well over a year to come to court).
  • And the Tribunal may find that the employee contributed to their dismissal and thus have any compensation awarded reduced by up to 100%.
  • If this turns into a discrimination claim then compensation limits will be potentially higher.

Ian Pearson

Amicus Law Solicitors

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