No jab, no job. Why I say employers are barking up the wrong tree!
I’ve spent a huge amount of time thinking about no jab, no job since Charlie Mullins of Pimlico Plumbers first suggested that this would be the policy in his workplace. I went on LBC radio to talk about it. My personal view is that in a civilised society we all have a part to play in getting back to normal and that means being vaccinated. But that is a personal view. With my employment lawyer hat on I have quite a different view of no jab, no job.
My first impulse was why not? Seems reasonable. Wants to protect his staff and indeed has a duty to do so under Health & Safety legislation. Wants to avoid any of his staff taking Covid-19 into the homes of customers. And could this policy be lawful under the guise of protecting his staff and customers? Mr Mullins and his legal advisers have suggested it could be so.
The issues have been discussed widely but I don’t think this will be lawful. Yes, such a policy risks inadvertently discriminating against particular groups in the workplace. Most obviously pregnant women who may choose not to have the vaccine. A recent study suggests 60% of pregnant women have declined the vaccine. Those with religious beliefs such as ethical vegans. Some classes of disabled employees who may not be able to have the vaccine on health grounds. Employers will have to carve out exceptions for such people or face claims for indirect discrimination.
And can I be dismissed for refusing the vaccine? In theory, yes. It is open for an employer to exclude you from the workplace but it’s a risky strategy. If you have more than two years’ service you might have an unfair dismissal claim. If you are dismissed on discriminatory grounds you have rights from day one. You might also invoke whistleblowing protections if you are dismissed for raising an issue related to compulsory vaccines. Again those rights apply from day one.
We have all heard all of these arguments and will have to wait a fairly long time for them to be tested in the Employment Tribunals and county courts. My money is on it being held to be unreasonable/unlawful to insist employees are vaccinated.
But I have also been thinking about what the purpose is of such a policy? It is not open to an employer to compel an employee to take the vaccine? Your employer has as much right to force you to do this as to ask you to get a tattoo or dye your hair green. It is overstepping the mark of the employer-employee dynamic to insist on this. We are no longer, thankfully, living in the time of the master-slave employment relationship. You have to obey reasonable orders of your employer but is asking you to have a vaccine a reasonable order? I don’t think so. It goes into the realm of private life and you have a human right that is protected in law.
So then why are some employers insisting? I simply do not know. As far as we know the vaccine protects against serious illness and death but does not stop transmission. If it stopped transmission I think employers would have a stronger argument to insist that someone should not be bringing Covid-19 to the workplace. But if it doesn’t then surely the vaccine is only protecting the individual from serious illness and if the individual is willing to take that risk why should an employer’s wish trump that?
Don’t get me wrong. I am all for the vaccines. They are the only hope of resuming a normal society in the face of this terrible virus. As a clinically extremely vulnerable person who has quite literally been in lockdown for 16 months I am very much in favour of vaccines. They allow people like me to be reintegrated back into society with some limits. I still am not allowed to mix indoors without a mask and won’t be for some considerable time. No jetting off on a plane for me.
Have employers missed a trick here? If everyone in the workplace were to wear masks and undergo regular testing there would be no need to insist on compulsory vaccination. This is the route to legal-challenge-free working for employers. I won’t be advising any of my employer clients to insist on compulsory vaccines and look forward to bringing claims for those who are forced out of a job for refusing to do so. I’d love to test the point in the courts.
This blog was written by Karen Jackson, solicitor and Founder-MD of Didlaw