‘No jab, no job’ – why we don’t advise employers to have a mandatory vaccination policy

We hear in the news this week that Charlie Mullins, famously litigious founder and CEO of Pimlico Plumbers, has announced that he has instructed the company’s lawyers to draft new employment contracts making it mandatory for staff to be vaccinated against COVID-19.

If that is the case, it is not an enviable position for those lawyers to be in, as such a robust approach is fraught with legal challenges.

Of course, employers are definitely in a bind; needing to balance the rights of staff to be free to make their own decisions on vaccination against obligations imposed by health and safety legislation and common law duties to reduce workplace risks and provide staff with a safe place of work. Alongside this, employers will be keen to reassure customers and clients that their staff pose the least possible risk of transmitting the virus. The question is whether these considerations justify imposing instructions or, more onerously, contractual obligations on staff to be vaccinated.

Those words that clients dread hearing from lawyers will come to the fore. Our advice may differ in each case. It will be necessary to consider the very nature of the business carried out by the employer. Questions will need to be considered as to how staff are interacting with each other and clients and customers. Is it necessary for staff to have close contact or are they working in large open plan offices, for example? Are they likely to be coming into contact with fellow colleagues, clients, customers or any other members of the public who may be more vulnerable to the virus?

In addition to this, consideration will need to be given to the rights of individual members of staff and whether there are health reasons or religious or philosophical beliefs that mean that vaccination is not appropriate. This would include pregnant women, who are currently advised not to have the vaccine until more is known of the possible implications. Importantly these women may not wish to impart news of their pregnancy at an early stage by way of explaining why they don’t wish to be vaccinated.

Only once the circumstances of each case are considered will it be possible to advise on how reasonable it is for that member of staff to be required to have the vaccine.

Staff ordered to be vaccinated or face risk of disciplinary action or dismissal would have grounds for unfair dismissal and/or discrimination claims where reasonable grounds for refusing vaccination are not accepted. Given the legitimate reasons people may have for keeping their decision private, one can see that it could expose employers to claims purely by pressing staff to explain why they won’t be vaccinated or even to merely confirm whether or not they have been.

Far better, in our view therefore, to adopt a softer and more informative approach to vaccination. ACAS recommends that employers talk to staff about the health advice being issued about the vaccine. Employers may also in due course wish to offer to fund vaccination in the same way as they may with the common flu jab. We would recommend that the benefits of vaccination only be expressed in conjunction with referral to proper medical advice from a healthcare professional who can discuss benefits and risks in each individual case.

There may still be legitimate reasons for some employers to impose an obligation to be vaccinated in certain circumstances, for example where staff are caring for the elderly or vulnerable and the duty of care towards those people will understandably override an employee’s right to continue working unvaccinated. That said, one can see that disciplinary action will still not be appropriate where staff refuse in the majority of cases and employers will have to think carefully about what action to take and consider alternatives to dismissal.

Mr Mullins is not unfamiliar with fighting cases raised by his staff and has already commented that he is willing to take this matter to the Supreme Court if necessary. We may well see him there if he insists on enforcing a mandatory vaccination policy. We will wait with bated breath.

Our employment law team are on hand to assist you with your employment related queries. If you have any questions or need any advice please do not hesitate to get in touch.