No Jab, no job!

Not surprisingly, there is conflict between the science and politics of vaccination and the current conversation among employers is whether staff can be required to be vaccinated.  

The government says that such coercion is not the way things are done in the UK and that it prefers to persuade rather than force, however blanket references to ‘discrimination’ are not very helpful.  

‘Discrimination’ exists; and rightly so! We discriminate when we hire a more qualified person over a less qualified one; it is unlawful discrimination, as set out in the Equality Act that is prohibited.

Any policy adopted by an employer has the potential to be unlawfully discriminatory if it put workers with a protected characteristic at a ‘particular disadvantage’. If an employer had a 'no jab, no job' policy, a worker who refused the jab on medical or religious grounds, may be able to argue that the policy which led to their dismissal or demotion (etc) breached the Equality Act. However if an employer’s policy for compulsory vaccination could be justified and was considered reasonable, there would be a defence which would stop the discrimination becoming unlawful.  

The current debate makes particular reference to workers in care homes. While, globally, we remain in a pandemic at a time when residents and staff at care homes appear to be at the highest of risk, such a policy might seem perfectly justifiable (especially if kept under review).

Employers who are worried about their staff refusing vaccines might do well to risk assess their situation. Can they justify putting in place a ‘no jab, no job’ policy? If so, they may have a ‘legitimate aim’. 

If someone breaches the policy, what should the employer do? If the un-vaccinated employee cannot work in their contracted role, is there something else they can do or can the risks be mitigated by other means? If not (or if it would be unreasonable to make such adjustments), is dismissal the only option? If it were, the dismissal might be a proportionate measure. 

Doing something that is proportionate in pursuance of a legitimate aim is the defence to a claim for unlawful indirect discrimination. 

As an aside, it is almost certain is that there will be no protection under the Equality Act for a worker or employee who does not agree to be vaccinated if their objection was because of mistrust of the science or for some other conspiratorial ground which surely cannot arise from one’s ‘protected characteristics’.  

If an employer selected a group of employees to be vaccinated because of their protected characteristic; perhaps an employer decided that all BAME workers had to be vaccinated whereas other staff were not so required, that would be a clear act of direct discrimination for which there is no defence.

Putting discrimination risk to one side, the fairness of an employee’s dismissal has to be taken into account (employees with more than 2 years service have the right not to be unfairly dismissed). Dismissal can only be fair if it is for a potentially fair reason; perhaps it would be ‘misconduct’ to refuse the order, or ‘some other substantial reason’ if by being un-vaccinated the employee cannot fulfil their contractual obligations; both potentially fair reasons for dismissal. However the dismissal would still need to be fair and reasonable in the circumstances eg has the employee been vaccinated since their initial refusal, does the employee have a good reason to refuse the jab/did the employer have a good reason to demand it, could an un-vaccinated employee be relocated somewhere with lower risks? etc.

As the vaccine program rolls out into sectors of the population that are more likely to be employed than retired, these issues are going to start to become real for employers who should have a plan for staff that cannot, or will not vaccinate.