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25th March 2021

With just short of 28 million of the UK population having received their first COVID-19 vaccination, and 2.3 million a second dose, employers are wrestling with a very acute dilemma. Can they/should they force employees to have the COVID-19 vaccination? Can they lawfully refuse to employ those who have not been vaccinated? Can they refuse to allow non vaccinated employees to return to the workplace?

Even if employers could legitimately argue a case for a blanket “no jab no job” requirement, what kind of message about the culture of their organisation is this likely to send out? Those who have had the jab (or intend to have it when offered) may well think this is a reasonable requirement. Those who have not or do not intend to have it when offered may take a contrary view claiming it is an infringement on their human rights, discriminatory or just simply unreasonable.

“Rock and a hard place?”

Most employers will have very legitimate reasons for considering such a requirement. The impact of the Coronavirus on the UK population; the seriously high number of deaths; the impact of long COVID and the unprecedented damage to their own businesses (and the economy as a whole) have created a scenario in which employers have been increasingly focussed on putting health and safety right at the top of their risk register. Workplaces that were once not regarded as high risk can no longer claim to be the case.

Responsible employers will have already implemented a COVID compliant regime of sorts to protect their workers in the time since we have had to get to grips with the pandemic. However, an additional protection in the form of the vaccine is now present. Should the requirement to be vaccinated become part of the employee health requirements alongside lateral flow tests; temperature checks and the like?

If employers insist on an employee being vaccinated there are a whole host of potential problems, they can face. Discriminatory procedures and practices readily spring to mind (see our separate blog post around these issues https://www.thebydesigngroup.co.uk/?p=2348&preview=true).  However, if they do not insist on employees being vaccinated, will they face prosecution for failing to take all reasonable steps to protect their employees? Could they even face corporate manslaughter charges in a worst-case scenario? This is probably unlikely but still a possibility.

The likelihood is that whether an employer can justifiably, and within the law, implement a no jab, no job policy will depend on the nature of the organisation, how much risk is involved and whether the requirement is a reasonable means of achieving a legitimate aim – the health and safety of all concerned in the workplace. Employers are advised to consider as part of their ongoing COVID risk assessment whether they need to introduce a vaccination requirement and ensure their reasons for whatever the outcome is, is well documented.

Alternatively, maybe Boris Johnson’s latest thoughts on “no jab-no pint” might support a solution….  we suspect the debate will continue for some time yet.

Would you be in favour if it would help open up the economy and get people back to a more normal life?

If you would like advice on your options, please do not hesitate to contact Sue at Sue.Morrison@lawbydesign.co.uk or Emma at Emma.Hough@lawbydesign.co.uk

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