The Oasis Reporters
February 9, 2021
Charlie Mullins, the controversial chief executive of leading London plumbing firm Pimlico Plumbers, recently announced plans to impose a “no-jab, no-job” policy for existing and future members of the company’s workforce. Workers would be contractually required to prove they had received the COVID 19 vaccine, without which they would not be offered any work by Pimlico.
Such a suggestion raises the spectre of other employers and the government adopting a similar policy to all workers to be vaccinated or face the prospect of no job. It is easy to understand why the government and employers would find the prospect of ensuring all workers undergo vaccination appealing.
Now that the vaccination programme has started, there is immense pressure from the general public, other employees and customers to try to ensure as wide coverage as possible in an effort to control the spread of the disease. So will the government or other employers adopt such a policy for all those who engage in the labour market; and, if so, would it be lawful?
What the law says
There are compelling reasons why employers should not introduce a “no-jab, no-job” policy. There is the immediate practical obstacle of the availability of the vaccine. The government controls distribution and the priority recipients, with the exception of frontline health and social care workers, are all of an age that they are mostly out of the active labour market.
Although some employers have said they would pay for vaccines to be supplied to employees, the government has said that stocks are likely to be fully absorbed by NHS use, even if and when supplies increase.
Some workers may also be unable to accept the vaccine because of religious or other sincerely held beliefs. And others may have contra-indications to vaccination which would mean their health would be seriously affected if they had to take it. In short, substantial numbers of workers would be unable to comply with a requirement to be vaccinated through no fault of their own.
Besides all these issues, there are legal impediments to a “no jab, no job policy”. The Public Health (Control of Disease) Act 1984, under which the COVID-19 health regulations have been promulgated, provides that any individual cannot be required to undergo medical treatment, including vaccination.
This does not prevent an employer from asking an employee to consent to a contractual requirement to undergo vaccination before offering the employee work. But there would always be a question mark over whether “consent” in such circumstances was freely and voluntarily given. If it was felt that it was not freely given, the 1984 act would apply.
Although there does not appear to be any ruling by the courts directly on this point, there are precedents supporting the view that lack of positive objection by an employee cannot be equated with consent.
An analogy can also be drawn with the legal principle of “economic duress”, which says that economic pressure that gives the weaker bargaining party no practical option but to agree to a contract or accept particular terms makes the contract voidable. A case currently pending before the supreme court will decide the scope of this principle where the stronger party genuinely believed it was entitled to act in the way that it did.
Finally, any attempt by an employer to change the terms and conditions of an existing employment contract unilaterally would almost certainly be a fundamental breach of contract. This would allow the employees to bring a claim for constructive unfair dismissal, in which they would be arguing that they effectively had no choice but to leave their job.
The Equality Act
One option for employers might be to provide incentives for employees to agree to a variation in the terms of the contract. But this could still fall foul of the statutory prohibition, under Equality Act 2010, section 39, against discrimination in the terms upon which employment is offered, or work is refused, because of a “protected characteristic”. In the case of “no-jab, no-job”, the relevant characteristics are likly to be age, gender, disability and religious or other beliefs.
It is unlikely that an employer’s “no-jab, no-job” policy, were it applied to all employees or applicants equally, would amount to direct discrimination against any particular individuals within the terms of the act. However, such a policy would almost certainly amount to a “provision, criterion or practice” that disadvantages groups with the protected characteristics mentioned above, thereby amounting to indirect discrimination.
There is a defence under the law known as “justification”, where discrimination by an employer can be permitted if it is a proportionate means of achieving a legitimate aim. Protection of the health of co-workers and customers is undoubtedly a legitimate aim.
However, it is difficult to see how forcing employees to undergo a medical procedure, the efficacy of which has yet to be established, would be regarded as “proportionate” when there are other less draconian means that are arguably more effective, such as working from home, social distancing, wearing of face coverings and hand washing.
Besides all these issues, changes to the contractual terms of employment would raise difficult legal questions about the tensions between the freedom of parties to enter agreements on whatever terms they see fit, the duties owed by businesses to casual workers, and respect for individual rights to freedom of choice and privacy in matters of health.
For example, an employer’s duty to take “reasonably practicable” health and safety measures under the Health & Safety at Work etc Act 1974, section 3 extends not only to employees, but also to those who “may be affected” by the employer’s business activities, including contracted “workers”. On the other hand, it has long been established that refusing work to an applicant because they declined to undergo medical tests for the presence of specific conditions is a violation of that person’s right to respect for their private life.
In short, this is fairly straightforward from a legal point of view at present. Under current legislation, it is almost certainly going to be unlawful for any employer to introduce a “no jab, no job” policy. And since there does not appear to be any parliamentary appetite for such far-reaching legislative change, this legal position looks likely to continue.