Thursday, 30 June 2022
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Thursday, 30 June 2022

The legality of no jab no job? Employers risk discrimination if a vaccine policy is enforced

Marie Horner, partner in employment law at Langleys Solicitors writes

Back in February of this year, my colleague, Kate Hindmarch, commented on the risks that employers were likely to face if they adopted a “no jab no job” approach in the workplace. At that time, there was no specific legal right for employers to insist that staff be vaccinated and the law was conflicted; the human rights of the individual versus the employer’s obligation to protect the health and safety of its staff and, in the care sector, of those in its care. 

In July, the government introduced amendments to the law to require staff employed in registered care homes to be fully vaccinated, unless they were exempt. Those amending provisions came into force on 11th November 2021, following a 16-week grace period to enable affected workers to receive both doses of the vaccination.

This was despite the National Care Association calling for a last-minute extension to the deadline (to align with the April 2022 deadline for NHS staff), in the face of the realisation that there would be a clear risk of staff shortages in care homes over the winter due to the numbers of staff that were not vaccinated and were potentially facing dismissal. In Lincolnshire for example, the County Council have suggested that around 6% of staff working in the care sector within the county (around 540 people) have not had their jabs.

Commentary on the situation is plentiful at present but sometimes misleading. Employers might be forgiven for believing that they are entitled to simply dismiss those members of staff who are unvaccinated without further ado or to place them on unpaid leave whilst a decision is taken. However, such approaches would almost certainly be misguided.

Employers must take care to factor in the individual’s contractual terms, and ensure that all alternative options to dismissal are exhausted. Contracts containing specific terms allowing an employee to be placed on unpaid leave pending a decision are also likely to be the exception to the norm. Care must be taken with each individual employee’s reasons for not having the vaccination, with one eye on, for example, potential discrimination issues.

Finally, if the decision is still to dismiss, having considered all factors, employers must ensure that any termination is effected in accordance with the provisions of the employment contract.

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