There has been a lot of discussion over the past few weeks regarding the ‘no jab, no job’ proposal suggested by Charlie Mullins of Pimlico Plumbers. Whether you are dismayed or intrigued by this idea, it has certainly led to some interesting debate.
What is and what is not reasonable will be a matter for the courts to decide but, in the meantime, what are the key factors to consider?
Current vs future employees
There is a key distinction between requiring current and future employees to prove that they have received an approved coronavirus vaccine.
If an existing employee is advised that they will be dismissed if they are not vaccinated, they would likely be protected by existing employment legislation and the terms of their existing contract of employment. In general, it would need to be established that, where this decision is reached, there are sound and reasonable grounds for it. This will depend on the reasons for taking that decision and those reasons would need to stand up to legal challenge.
Arguably, if a candidate is advised that receiving an approved vaccine is a condition of their employment, it is their decision whether to accept the job on that basis or not. Providing that there are no other grounds for consideration, such as discrimination, it may be an approach that carries fewer risks.
Is your proposed approach fair and reasonable?
This is the key question. Whether your approach is considered to be fair and reasonable would depend on the reasons for it. As a starting point, it is important to consider what the impact might be to the organisation if an employee were not to receive the vaccination. The greater the impact, the greater likelihood that a decision to require a vaccination may be considered to be fair and reasonable.
It may be considered to be more reasonable to require an employee to be vaccinated if they are providing care in a care home environment rather than in an office, for example, where the potential impact may be considered to be lower.
Writing a policy requires the author to think clearly about the rules that need to be established, the reasons for them and the impact of breaching the policy, as well as making sure that employees are well informed.
Of course, any policy would need to be clear and non-discriminatory. It is possible that an employee may have reasonable grounds for refusing the vaccination. For example, if an employee is receiving treatment for existing medical conditions, which may be impacted by receiving a vaccine. Other groups, such as those with severe allergies and pregnant women, may have been advised not to receive the vaccine.
Information relating to coronavirus would be considered as ‘special category data’ and, as such, you must ensure that the lawful basis is confirmed and an adequate Data Protection Impact Assessment is in place. Policies and privacy notices would also need to be updated.
We can help
If you are considering implementing a policy and would benefit from some guidance, our team would be pleased to help.