‘No jab, no job’ employment contracts
A number of employers in England are considering introducing ‘no jab, no job’ contracts of employment for new employees in light of the number of people nationwide who are, reportedly, indicating that they will not take the coronavirus vaccine.
Boris Johnson has already said that, because of lack of evidence on how effective the vaccines will be on reducing the transmission of COVID-19, the Government is not planning to introduce vaccine passports. Instead, it wants to concentrate on mass vaccinations. However, Nadhim Zahawi, the Vaccines Minister, accepted that some employers may go ahead with their own schemes, such as only employing people who have been vaccinated.
This raises both moral and legal issues and could open the door to claims for discrimination. For example, individuals may not wish to get vaccinated because of religious or moral beliefs protected by the Equality Act 2010 (e.g. vegan employees who refuse because animal content has been used in the vaccine).
Employers considering introducing such contracts need to ensure their practices do not unlawfully discriminate against employees and do not breach other employment law principles. Additionally, whilst ‘no jab, no job’ contracts could be introduced for new employees at an employer’s sole discretion, if businesses wanted to introduce a requirement to be vaccinated into the contracts of existing employees, they would need to consult with their staff and seek agreement, which may prove challenging.
Employers will also need to bear in mind the potential data protection implications of holding information about whether employees are vaccinated. This is, after all, medical data, which would be considered to be ‘special category’ data for the purposes of the Data Protection Act 2018 and should be dealt with in accordance with the rules set out in the Act.
Notwithstanding the potential pitfalls, if an employer has carefully considered and weighed up the business needs achieved by these contracts and given reasonable consideration to any employee concerns, introducing them may well be justified, particularly if the employer operates in a high risk sector such as healthcare.