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There is never a dull moment in the world of employment law these days but this one was always coming….

With what seems to be the light at the end of a tunnel, the Government is aiming to roll out at least 2 million vaccinations for Covid-19 per week. There does not seem to be any sort of indication that the vaccine will be rolled out on a private basis but if it ever does, recent news has reported that Charlie Mullins, Chairman of Pimlico Plumbers, is prepared to pay (and has even set aside a large sum of money) for private vaccinations for all workers. That certainly sounds good, but what if employees are contractually obliged to take the vaccine, whether privately or via the NHS when their invitation arrives?

Yes, that’s what Pimlico Plumbers allegedly have in mind. In fact, it’s been reported that its lawyers are in the process of changing its current employee contracts to include a “no jab, no job” policy, requiring its employees to have the vaccine. It has also gone so far as to say that it would not employ people unless they have received the vaccine.

So what stance should or could employers take? There is a clear difference between offering vaccinations to employees and enforcing vaccinations on employees. Can an employer enforce a mandatory vaccine in its employees’ contracts or implement such a policy?

Well, whilst employers can try to enforce these changes / policies, it does not come risk free (and we would not advise that employers try without seeking legal advice first!).

Now for the legal talk… if an employer is making the Covid-19 vaccine a contractual requirement, they would first need to seek its employees’ agreement, and not simply enforce the change. By doing so, this allows the employee to resign for breach of contract and bring a constructive unfair dismissal claim. If it decided to dismiss an employee (who has more than 2 years’ service) simply for refusing to get vaccinated then it could well expect to face an unfair dismissal claim.

Though, there may be some relief for some employers. If an employer has an objective and justifiable reason for requiring its employees to take the vaccine, then it may well be able to enforce a mandatory vaccine. Take for example the care sector – employers have a duty of care to protect the health and safety of their staff, and those who are affected by the business. So, if after a thorough risk assessment, the (likely) conclusion is that a vaccine would reduce the transmission of Covid-19, then this may well be a legitimate reason to enforce a mandatory vaccine as a health and safety requirement. That said, this should be assessed on a case by case basis and is very much business dependant.  For the vast majority of employers, there will be no justifiable basis to impose a “no jab, no job” policy. 

Some employees may well refuse the vaccine on the grounds of their religious or other philosophical beliefs. In these situations, the employee will need to demonstrate a good reason to show that a religious or philosophical belief would not permit them to take the vaccine – this seems quite a high bar for an employee to overcome.   

It is therefore clear that employers should not “jump the gun” and dismiss an employee or not employ someone simply because they are refusing the vaccine.  For all new recruits, employers should take advice before deciding that they wish to make offers of employment conditional on an employee taking the vaccine.    

Needless to say, there are little to no issues with employers wanting to offer the Covid-19 vaccine to employees (if and when it becomes available privately) just as many offer a flu jab, but for now, the pragmatic approach would be to encourage and not enforce (unless there is a justifiable reason to do so), and specific legal advice should be sought where employers take the view that they do want to enforce – in many cases it simply will be a bridge too far.

The Leathes Prior Employment Team have prepared a range of Vaccination Policies which employers can use  (depending on whether they wish to introduce a voluntary or mandatory regime).   If you would like to have a Vaccination Policy drafted for your business please do contact us.  If you have any queries or concerns about the information discussed in this article or about employment law more generally, our specialist team of Employment lawyers would be happy to assist further.  Please email cwalker@leathesprior.co.uk or call on 01603 281139, who will be able to direct you to a member of the team.