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Jab or job?

View profile for Stephen Woodhouse
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The administration of vaccines to vulnerable adults who lack the mental capacity to consent

The UK government has recently announced that more than 20 million people in the UK have had their first covid vaccine. By the end of July 2021 the government hopes that the vast majority of the population will have had access to at least their first dose of the vaccine. 

In an employment law context, there have been reports that employers may look to introduce rules preventing employees from working for them where they have refused to have the vaccine.  It is important to examine the employees’ rights in relation to the vaccine and the different scenarios which may arise. 

First, an employer can never absolutely compel an employee to have a vaccine as this would be unlawful. However, the more common issue is where the employer prevents the employee from working for them if they have not had the vaccine. Employees may be faced a difficult binary decision - “jab or job”.

Reasonable management instruction

Many employers will seek to argue that the requirement to have the vaccine falls within the scope of a reasonable management instruction. In the event that the employer can show that the employee has refused to follow a “reasonable management instruction” then the employee could be dismissed fairly in the eyes of the Employment Tribunal. 

The reasonableness of the instruction will depend upon the circumstances of each case.  For example, it is more likely that a care home, which requires staff to have the vaccine, will be more reasonable than those who work in the online service industry.

The care home would cite the need to protect their, often vulnerable, residents with whom staff are in close contact. They may seek to rely upon their obligations under the Health and Safety at Work Act which requires them to take all reasonable steps to reduce workplace risks.

This would be contrasted with employers in the service industry, many of whom, have been directing staff to work from home during the pandemic. In the event that the employees who work for a business that can function remotely, it is less likely that a rule requiring staff to be vaccinated would be deemed reasonable by the Employment Tribunal. 

In the event that an employer can establish that an employee was failing to follow a reasonable management instruction then they could decide to invite the employee to a disciplinary hearing. However the employer must be careful to follow a full procedure and to explain the consequences of non-compliance with the management instruction before taking any significant decisions.

In the event that an employer fails to establish reasonable grounds or fails to follow a fair procedure in terminating an employment contract it is likely to lead to a finding of unfair dismissal