‘No Jab, No Job’ Policy Risks Discrimination Claims, Warns ACAS

Original article published by IOSH Magazine

Employers that are planning to implement a ‘no jab, no job’ policy have been warned that they could risk facing claims of discrimination.

Although British employees are not required to get the COVID-19 vaccine by law, research undertaken on behalf of the Advisory, Conciliation and Arbitration Service (Acas) has found that more than one in five employers plan to implement a ‘no jab, no job’ policy for both new recruits and existing staff.

The public body, which gives employees and employers free, impartial advice on workplace rights, rules and best practice, and also helps to resolve disputes, has urged employers to seek legal advice before mandating a policy.

Acas chief executive Susan Clews warns that, although more than 20% of employers polled want to make it a requirement for staff to be vaccinated against Covid-19 in the year ahead, it is ‘a very tricky area of employment law’.

‘It is always best to support staff to get the vaccine rather than insisting that you get it and it’s a good idea for employers to get legal advice before bringing in a vaccine policy,’ she says. ‘Acas has advice on how best to support staff to get the vaccine and avoid conflict.’

The findings come from an online YouGov survey of senior decision-makers that polled 1,074 adults in British businesses.

‘IT IS ALWAYS BEST TO SUPPORT STAFF TO GET THE VACCINE RATHER THAN INSISTING THAT YOU GET IT’

Participants were asked whether they had any plans to make it a requirement for staff to be vaccinated against coronavirus as a condition of employment. The poll revealed similar results on the policy towards new recruits and existing staff.

The survey, which was undertaken between 28 March and 5 April 2022, found that 22% of employers did intend to implement a ‘no jab, no job’ policy for new staff. This compared with 21% for existing staff.

More than half (52% in the case of new recruits and 55% for existing staff) said they would not implement such a policy.

Interestingly, 21% said they still did not know or they were unsure whether they would introduce such a policy for new recruits, which compared with 19% for existing staff. The remainder said that they preferred not to say what their policy will be.

The move towards mandating employees to be vaccinated was influenced by the UK government’s decision in June 2021 to make it compulsory for everyone working in care homes in England to be fully vaccinated from October of that year, a requirement that was subsequently removed on 15 March 2022.

Acas says that if an employer feels it is important that employees are vaccinated, they should talk with the individual staff member or the organisation’s recognised trade union if it has one.

The advantages of taking this approach are that together they can agree a vaccine policy that is appropriate for both parties. The employer can also support employees to protect their health.

‘IT’S A GOOD IDEA FOR EMPLOYERS TO GET LEGAL ADVICE BEFORE BRINGING IN A VACCINE POLICY’

Most importantly, consulting with staff will help to maintain a good working relationship and minimise the risk of disputes arising in the future.

Acas adds that there are some practical measures that employers can take to support staff. One is to pay employees their usual rate of pay if they are off sick with vaccine side-effects instead of providing statutory sick pay.

Employers could also encourage vaccine take-up by offering staff paid time off to attend vaccination appointments.

Rhian Greaves, associate partner – regulatory, and Adam Pavey, director in the employment practice at Pannone Corporate, commented on this last point in an article for IOSH magazine in March 2021.

They noted that evidence suggests vaccines slow virus transmission and have a good efficacy in avoiding infection. Consequently, vaccine acceptance by employees could help to reduce an organisation’s Covid-19 risk.

However, they added that facilitating vaccine take up ‘through paid time off to attend appointments’ was ‘an usual and potentially uncomfortable position’ because ‘it is not typically up to industry to champion medical treatment’.

Having said this, and while such a policy opens up a ‘legal and ethical can of worms’, they argued that it seems likely a court would consider this educational messaging to be ‘a reasonably practicable measure employers can and should be taking. The fact that COVID-19 is reportable under RIDDOR strengthens this position.’

Importantly, Acas advises employers to listen to the concerns of employees that do not want to be vaccinated. It argues that some people may have health reasons such as an allergic reaction to the vaccine while some employees may have other reasons for not wanting to be vaccinated.

In an article for IOSH magazine published in May 2021, Debbie Sadler, senior associate at Blaser Mills Law, said ‘enforced vaccination could still be challenged on legal grounds – from it being contrary to their human rights, or whether employers have enough compliance with the provisions of the Data Protection Act 2018 and the General Data Protection Regulations’.

She added that if an employee had an adverse reaction to the vaccination, they could bring a personal injury claim against their employer for any lasting illness or injury.

Rhian and Adam added that mandating vaccine take-up for existing employees would require a change to the contract of employment, and this would require consultation with the workforce.

‘An employee who is dismissed or sanctioned because they aren’t vaccinated may have the right to bring a tribunal claim,’ they argued. ‘For those with more than two years’ service, this would mean making an unfair dismissal allegation’.

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