No jab, no job. What challenges does this present for management?

Lizzie Buxton

Written By AdviserPlus

3rd March 2021

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As the UK starts to re-open businesses and the vaccination programme extends to include younger age groups, leaders need to consider what implications this could mean for their workforce.

There has been talk of a ‘vaccine passport’ to allow foreign travel, but can an employer forcibly require employees to have a COVID-19 vaccination?

On the one hand, employers have an obligation to ensure the health and wellbeing of their employees whilst they’re at work, but employees also have a duty of care to co-operate with their employer and make sure they’re mitigating any risks to their own health and to the health of their colleagues.

So, if you’re faced with staff members who refuse to have the vaccine, what risks should you consider?

Here’s what the legal experts at our sister company, Halborns, employment law specialists say:

  • Possible breach of implied duty of trust and confidence – Forcing an employee to have the vaccine could be considered a breach of trust and confidence (implied in every employment relationship), entitling the employee to resign and bring a constructive unfair dismissal claim. As those within the NHS aren’t being forced to have the vaccine, it is unlikely a tribunal will sympathise with arguments that the vaccination was an absolute requirement of the role.
  • Significant risks of discrimination – Those with allergies, who are pregnant or breastfeeding, or of a particular religious belief (along with other legally protected groups) will not be able to agree to the vaccination. Job losses as a result are unlikely to be capable of justification.
  • Damage to reputation – We’re likely to see significant litigation against those employers forcing employees to have the vaccination. You could well make the headlines if you insist on the vaccination for all employees.
  • Health and safety claims – If there are health issues as a result of the vaccine, personal injury claims against you are possible! Check your insurance to ensure you’re covered.

Short of insisting that employees are vaccinated, which could land you in dangerous territory, what can you do?

  • Lead by example – Ask your leadership team to get vaccinated first and to share their experience with your colleagues.
  • Be clear on your purpose – Sharing with your employees why getting the vaccine matters to your business is important. For example, if you’re in a sector that works with those classed as clinically extremely vulnerable, explain the risks that failing to get vaccinated might have.
  • Care personally – If colleagues are telling you that they’re not willing to be vaccinated, ask managers to take the time to speak with them and find out why. By investing the time to care personally, you may be able to understand their concerns and reassure them.
  • Control the message – Create your own fact-based communications to share internally and promote the benefits of the vaccine both on a personal and business level.

It’s important to note that the work environment should already be COVID secure and provide sufficient space for employees to social distance, so having one member of staff who refuses the vaccine should only become a serious problem if COVID-secure measures aren’t in place.

If you’re in doubt and need any employment law advice, or need assistance with revising or creating new policies, then our experts are here to help. Get in touch:

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