16th Apr, 2021

Tribunals could test any 'no jab, no job' policy, says Worcestershire employment lawyer

Rob George 25th Feb, 2021

EMPLOYERS are already voting with their feet as far as the ‘no jab, no job’ controversy is concerned, a leading Midlands employment expert has warned.

Helena Morrissey, director and head of employment and HR law at Thursfields Solicitors, said there was a risk that the legal position on whether employers could insist employees are vaccinated was likely to lag behind by as much as two years, given delays in the judicial system.

“On the face of it, insisting your staff have the jab, or refusing to employ applicants who won’t be vaccinated, is potentially discriminatory,” she said.

“But equally, employers have a duty of care to all their staff, their customers and their suppliers.

There may be certain situations in which insistence on having the jab can be fully justified. The reason for refusal will also be a factor in considering whether refusal is reasonable or not.

“For this dilemma to be resolved, we may have to wait 18 months to two years until it has been tested in an employment tribunal – and we are seeing this length of delay in cases reaching tribunal exacerbated by the pandemic,” she said.

Justice Secretary Robert Buckland has cautioned against employers insisting that existing staff must have the jab, but said that, if it were written into their contracts, it could be possible to make it a condition of employment for new staff that they are vaccinated before they can start work.

One company, Barchester Healthcare, has already stated on its website: “With regards to our staff, we are doing all we can to reassure and encourage those who are a little more reticent to have the vaccination, and we are also ensuring that all new staff must have the vaccination (if they medically can) before starting work looking after our vulnerable residents and patients who are in our care.”

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