In news that will be sure to fire up a passionate debate, the justice secretary has confirmed that enforced vaccine policies are legal, however, this may only apply to new employees.
The Conservative MP for South Swindon, Robert Buckland did however state that it is unlikely that enforcement of so-called ‘no jab, no job’ clauses on existing employees will be not possible and that any attempt to do so will require legal action.
The justice secretary spoke out after the notoriously outspoken CEO of Pimlico Plumbers, known for his anti-Brexit views, announced that enforced vaccine policies will become part of the contracts of all new hires. He states that the purpose of the policy is to minimise the risk for staff and customers.
Charlie Mullins said that ‘When people come along for a job with us if they’re not happy to sign that then that’s their choice but they certainly won’t be given a job with Pimlico Plumbers.’
He did however acknowledge that it wouldn’t be possible to enforce on existing workers: ‘We wouldn’t dream of forcing anybody but I’m pretty much certain that 99 per cent of our staff would jump at the opportunity.’ He also signalled his intention to invest in a private immunisation programme if it was possible.
Companies intending to enforce vaccine policies for workers will face opposition from two camps: those who are vehemently against vaccinations and those who feel that it will be more beneficial to persuade people rather than enforce the jabs.
Professor Jonathan Van-Tam, the Deputy Chief Medical Officer in England was one of those who warned against enforced vaccine policies stating that while it may seem like a good idea it could “create resistance” leading to lower uptake.
Nearly 18m people have had their first jabs with a reported uptake rate of 94% in over 70s in England which has far exceeded the target of 75% so there is certainly data to back up this approach.
Whilst there is a substantial minority who have been misled by claims not based on science who will continue to refuse the vaccine some lawyers would contend the legality of such clauses.
Some potential employees would contend they may be exempt from having the vaccine due to medical conditions whilst others may not have had the opportunity to have their vaccine due to not being in a priority group raising potential age-based discrimination claims.
Hypothetically companies such as Pimlico Plumbers could choose to delay implementing enforced vaccine policies until beyond the end of July once all adults have been offered their first dose or perhaps including a clause stating that employees must accept the vaccine once offered one.
Other potential discriminatory pitfalls would include those who would reject a vaccine for religious reasons, pregnancy, or a health condition considered a disability. However, there may be public safety grounds to justify such a clause if the employee worked in an environment that may put them into contact with others, especially the vulnerable.
Unlike new hires, existing employees would have to consent to such a policy being imposed as this would not have been in the original terms of employment. Whether all employees would truly agree to such terms or if some would feel they were coerced fearing discrimination remains to be seen.
The Public Health (Control of Disease) Act 1984 states that consent must be freely given. If the employee was under “economic duress” then it wouldn’t be practical for them to refuse. Changing the contract without proper consent would be considered a breach of contract and grounds for constructive dismissal.
This is an argument that will not go away any time soon. Some employers such as Pimlico Plumbers will enthusiastically press ahead with enforced vaccine policies but they will need to be prepared for a potential legal battle.
Do you have a employment matter that you’d like to discuss with the team? Alston Asquith have offices in London and Hertfordshire and can arrange a call to provide some initial advice.
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