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LEGAL VIEW
WILL JABS BE JUST THE JOB?
By Ged Henderson
‘No jab, no job’. It’s a phrase that has been making headlines and dividing opinion as Lancashire looks to emerge from lockdown and start its journey to economic recovery.
A report in March revealed that more than half of managers in the UK believed businesses should be allowed to make Covid-19 vaccinations mandatory for staff returning to work.
The Chartered Management Institute’s poll indicated that many supported the idea of the ‘no jab, no job’ clause that some organisations have been considering.
The CMI also found that 43 per cent of managers thought office access should be restricted for staff who refuse to get vaccinated on non-medical grounds - although 44 per cent disagreed, highlighting the complexity of the topic.
There was also concern about managing the potential conflict between staff reluctant to get the jabs and the staff who feel unsafe working with unvaccinated colleagues.
CMI chief executive Ann Francke said: “Managers have shown a significant level of support for mass testing and vaccinations. And widespread take up would allow for a swift and safe return to work.”
Some companies, including social care providers, have already adopted the ‘no jab, no job’ policy for new hires, where job offers are conditional on getting vaccinated. Others have hinted that they would look to make it compulsory for existing workers.
There have also been reports that the government has been considering making vaccination compulsory for those working in care.
The legal implications around all this remain unknown and untested. Government justice
minister Robert Buckland has said it may be legal for businesses to insist on new workers getting their jab as a condition of their employment.
When it comes to altering contracts to require existing staff to be vaccinated, the situation is even less clear-cut. The minister said that the legality of “no jab, no job” would depend “very much on the terms of employment and the particular contract”.
He added: “Generally speaking, I’d be surprised if there were contracts of employment existing now that did make that approach lawful. I think frankly the issue would have to be tested.”
Claire Thwaite of Burnley-based Cube HR says vaccines and testing are two significant steps to ensure protection for people in the workplace and should be encouraged wherever possible.
However, she believes insisting on compulsory vaccinations could create “huge risks” for Lancashire businesses.
She says: “Not only could you be breaching human rights, but you also leave yourself open to criminal charges such as unlawful injury, if someone has a bad reaction to the vaccine, and employment tribunals for constructive unfair dismissal or discrimination, whether that’s disability, religion or philosophical belief oriented.
“There are generally two reasons why someone may object to the vaccine or testing – those who can’t for medical, religious or philosophical belief reasons, and those who won’t because they are dubious about the vaccine and its effects.
“For those employees who can’t have the vaccine or undergo testing, you’ll need to work with them and possibly their medical team.
“You’ll need to consider the possible consequences on their job role and other
options – for example if their role requires them to travel and they will have to be vaccinated to do this, can they be redeployed or can their work structure change?
“For those who have vaccine hesitancy, this a very complex area and there can be many reasons why people are just reluctant to have the vaccine or be tested. Understanding these reasons and pointing them to independent educational information could be a way forward.
“Whatever you decide to do, it’s important to think about the stance your business wants to take and develop a clear policy explaining your approach and how you will deal with anyone who refuses, especially if having the vaccine or being tested is essential for their job role.”
Karen Credie, of Clitheroe-based KMC HR, says the fact vaccinations are not and have never been mandatory in the UK and would make enforcing a vaccine policy “highly difficult”.
She says: “With the law having thus far not been tested in this regard, employers may wish to tread very carefully in relation to this issue and consider whether the risk of unfair dismissal, discrimination and other claims is worth it.”
There are other issues. Karen says: “From a practical perspective, gathering information as to whether or not employees have or have not been vaccinated may not be straightforward.
“Employers may wish to ask if employees have or have not been vaccinated but need to have a good reason for doing so. Employees may refuse to answer, which will inevitably lead to further complications.
“Any information gathered in respect of the vaccination of employees is classed as sensitive
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