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No jab, no job is discriminatory?

Should employers encourage employees to take the COVID-19 vaccine, but ultimately leave it to individuals to choose, or should they adopt a "no jab, no job" policy?

Never one to shy away from controversy, Charlie Mullins of Pimlico Plumbers is reportedly looking at introducing such a "no jab, no job" policy. You can read my thoughts on the legal implications in this Newsbites article.

Just days after that was published, the prime minister made his views on the matter clear, with a spokesperson apparently saying that "taking a vaccine is not mandatory and it would be discriminatory to force somebody to take one".

Whilst forcing employees to take a vaccine clearly runs contrary to the PM's libertarian instincts, would introducing such a policy be "discriminatory" in the sense of being unlawful?

There are some pretty straightforward cases where such a policy would likely amount to unlawful discrimination — for example cases involving pregnant employees or employees with underlying disabilities. In such cases, an employer would be well advised to make exceptions to any policy requiring employees to have the vaccine.

But what about philosophical beliefs?

What if an employee had a strongly held belief against vaccinations?

It is not inconceivable that such an employee would have additional legal protection — although not necessarily against dismissal for refusing the vaccine. The fact is that a "no jab, no job" policy might put an employee with a particularly strongly held belief against vaccines at a disadvantage (of dismissal) compared to those who do not have the same view.

However, provided the employer acted in a reasonable and considered manner, the act of dismissal might be legally justifiable, for example on the grounds that the employer was trying to achieve a greater good of (for example) protecting the workforce against the virus.

Undoubtedly, then, a blanket policy requiring employees to have the vaccine would be foolhardy. A more nuanced policy might well be lawful, provided that it was carefully applied in practice.

Time will tell what approach different businesses will take. One thing seems certain though, the prime minister won't be the last person to enter this particular discussion.

Veil Matti Raikkonen

Senior associate Veli-Matti provides employment law and human resources advice to public and private sector employers on matters including collective consultation, redundancy issues, equal opportunities, ill health policies and discipline issues. He also represents clients at Employment Tribunals with cases involving disability discrimination and breaches of contracts.

Posted, 19 February 2021 by Veli-Matti Raikkonen
Categories: Coronavirus | Coronavirus and employment law | Employment