Is it lawful to have a ‘no jab, no job’ policy and will it be fair to dismiss employees who refuse to be vaccinated?
It would be easier to make it a condition of employment for new starters by making it a contractual term if you have a sound business reason and it is proportionate in what you are attempting to achieve. Think about the reason why you want all staff to be vaccinated.
But what about for existing staff? What do you do need to consider if they don’t agree to be vaccinated?….
Discrimination claims – no length of service required
Discrimination will be unlikely to apply in most cases as vaccine hesitancy is not a protected characteristic under the Equality Act 2010. It could be that the vaccine is not advised during pregnancy and therefore, this would fall under the Equality Act. It could also be possible that it is dangerous for people with certain health conditions which could include disabilities and it is also possible that if any of the vaccines contain animal derived ingredients then a Muslim, vegetarian or vegan employee might refuse and bring an indirect discrimination claim if they were dismissed as result. This would be because the no jab, no job policy puts those who are pregnant or those with particular disabilities or Muslim people, vegetarians and vegans at a disadvantage due to their pregnancy, disability or beliefs. You as an employer could justify this action if you have a sound business reason and a ‘proportionate means of achieving a legitimate business aim’ or you could make an exception for these rare cases. Obviously, this has not yet been tried and tested at Tribunal so it would be difficult to gauge what the end result could be. If someone is unwilling to have the vaccine, it is important to discuss with them their reasons why so that you can decide on your approach.
Unfair dismissal – 2 years’ service required
As an employer, if you do dismiss an employee you must show that you dismissed the employee for one of the potentially fair reasons (conduct, capability, redundancy, breach of statutory duty and some other substantial reason) and that you have acted reasonably in all the circumstances.
Again, this won’t be tested in the tribunal for some time. However, it may be difficult for you to show that a dismissal for vaccine refusal is fair as the Government has not made vaccinations compulsory, and it could be a breach of human rights to insist on the vaccine. There are workplaces where vaccination is an important health and safety measure for example in the NHS, private healthcare or care homes because the argument is that the vaccinated staff will protect vulnerable patients and clients from the virus and significantly reduce or even remove a significant risk to their health. Defending a dismissal in these areas would be easier, but the company would still need to consider alternative roles aside from frontline roles as a way of avoiding dismissal. It could also be argued that dismissal would be fair in a role that involves close contact such as hairdressing or personal care. However, for roles that are not close in contact and where social distancing can be maintained, it is more unlikely that a dismissal could be seen as fair, even more so if they work at home or outdoors. If an employee has less than 2 years service you can terminate without risk of an unfair dismissal claim as long as there is no risk of an automatic unfair dismissal claim or a discrimination claim as above.
As always nothing is straightforward, it will be dependent on the circumstances and dismissal should be a last resort, seek advice where required.