"No jab, no job" policies might generate press coverage. But are they legal?


As the COVID-19 vaccine continues to be rolled out to priority groups, many employers are considering how they will approach staff vaccinations.   Most employers will actively encourage staff to get COVID vaccinations and, if the vaccine becomes widely available in the next few years, would be happy to offer it to staff.  But can employers go further and require staff to get the vaccine as a condition of their employment (or attending work premises)?

The answer, in most cases, is probably no.   There are two key angles to consider.   First, would it be a 'reasonable instruction' to require staff to have the vaccine (so that failure to follow the instruction would be fair grounds for dismissal)?   The right of individuals to refuse medical treatment (of any kind) and rights to privacy and bodily integrity are long-established rights, so an employer would need to assess whether the need for the vaccine outweighs these important interests.   For certain roles where the risks of infecting others are particularly high, the answer may be yes.  Care home staff are a good example.   Another consideration may be the need to undertake international travel.   It seems likely that some countries will require vaccination as a condition of entry.  If an employee's role requires travel to those locations, it may be reasonable to require them to get the vaccine.   However, the employer would need to consider carefully how essential the travel actually was for the role, now that remote conferencing has become much more widespread.  

On the other hand, it is less likely that a vaccine requirement would be reasonable in the context of roles which do not require close physical contact.  Indeed, as more people are vaccinated across the population as a whole and the threat of the virus (hopefully) subsides, such a requirement would become less reasonable over time.  An employee who was dismissed for refusing to be vaccinated would potentially be able to claim unfair dismissal. 

The other issue to consider is discrimination.  A vaccine requirement could well be indirectly discriminatory.   Pregnant women are currently being advised not to have the vaccine (unless they are at particular risk from COVID-19 due to existing health conditions), and some staff with disabilities may likewise be advised not to have the vaccine.   Some staff may have religious or other beliefs which they believe prohibit them from being vaccinated.  An employer would need to show that a vaccine requirement was justified in order to defend an indirect discrimination claim - and again, unless the nature of the work entails particular risks, this may be difficult to show. 

Employers therefore need to think very carefully about the possible ramifications of requiring staff to be vaccinated and assess the risks according to employees' roles, rather than adopting blanket policies. 

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