Should employers be allowed to demand all their workers are vaccinated?

Is ‘no jab, no job’ something that should be accepted as a way of protecting both work forces and customers and also opening up the economy? Or is it discriminatory, perhaps illegal and even potentially dangerous? Ben Chu investigates

It’s unclear whether ‘no jab, no job’ contracts would be breach of the 2010 Equalities Act (PA)

As the UK vaccination programme continues at a rapid pace, the question of whether employers should be allowed to insist employees are vaccinated is coming into focus.

Some firms are reportedly looking into designing contracts which require new hires to have been vaccinated and also changing the contracts of existing employees too. Charlie Mullins, the founder of Pimlico Plumbers, said last month that he would require his own staff have the jab in order to protect his other workers and customers, calling it “jab for a job”.

At that time the vaccines minister Nadhim Zahawi said that policy would be “discriminatory”, adding: “We’re not that sort of country and I think it’s important we do it by persuasion.”

But this week Mr Zahawi seemed to change his tune, saying it was “up to business what they do”.

So is “no jab, no job”, as some have labelled it, something that should be accepted – even encouraged – as a way of protecting both workforces and customers and also opening up the economy? Or is it discriminatory, perhaps illegal and even potentially dangerous?

One of the dangers of this approach is that the evidence of the impact of vaccination on the transmissibility of the virus is not clear.

The hope is that the vaccinated will not pass on Covid-19 but it’s by no means proven that they won’t.

The danger of “no jab, no job” policy, then, is that it may give a false sense of security, especially if it leads to many workers returning – either willingly or under pressure from employers – to offices after previously working from home.

On the discrimination front, there’s a danger that a no jab, no job policy could indirectly harm the employment prospects of younger workers, given the fact that older people have been prioritised for vaccination.

Waiting until all adults have been offered the vaccine before rolling out new contracts could mitigate this problem.

But there would still be the issue of people who cannot or will not get vaccinated, perhaps for religious or medical reasons.

It’s unclear whether no jab, no job contracts would be breach of the 2010 Equalities Act.

“We’ve never had a contract of that kind tested”, says Daniel Parker of the law firm Winckworth Sherwood.

“A lot of time they’re fleshed out by individuals raising their own disputes as there’s no overarching enforcement body.”

Lawyers say the legality of new contracts might depend on the sector. Care homes, for instance, where workers work with the vulnerable, might be able to show that changing contracts to require a jab is justifiable whereas a services firm, where most employees could work from home, might struggle.

Leaving aside the legal question, the morality is not clear cut.

Yes, vaccine requirements would discriminate against the unvaccinated, but some argue that’s the entire point.

Is it really any more discriminatory to require workers to have a vaccine than to bar travellers from overseas who cannot display a clear Covid test?

And if shops can require customers to wear a mask is that so different from firms asking their workers to get vaccinated?

And wouldn’t these new contracts be a way, as Charlie Mullins suggests, of protecting colleagues and customers, and making a safe workplace?

“There is clearly an ethical dilemma to be navigated here about the rights of companies and their clients and the rights of employees,” says Ian Mulheirn of the Tony Blair Institute.

There is clearly an ethical dilemma to be navigated here about the rights of companies and their clients and the rights of employees

Ian Mulheirn, Tony Blair Institute

“In some sectors like care [mandatory vaccination] seems reasonable but elsewhere it’s more problematic. We can’t have a two-tier society based on willingness to vaccinate and employers probably should not be able to know private information about the vaccination status of their employee.”

Mr Mulheirn suggests a way out of the dilemma might be to develop a government-administered system of “digital health credentials” where people could either have had a vaccine or a recent negative test result to confirm their Covid status.

“This would allow them to disclose their status to employers, restaurants or airlines without providing any other identifying details,” he says.

The downside is that this plan would require building yet more digital state infrastructure.

The broader argument against changing contracts is that the vaccination effort for workers should be promoted through consent rather than compulsion.

“Firms can make it easy for people to get the vaccine by being flexible about working hours or offering paid time off,” says Peter Cheese, of the Chartered Institute of Personnel and Development (CIPD).

“This will encourage take up and reinforce the message that vaccination is important and supported by the employer.”

Charlie Mullins, who was at the centre of a high-profile legal battle with a worker over his employment status, is not a figurehead for no jab, no job likely to settle the nerves of those who fear this policy will be used in a way that diminishes workers’ rights.

Brian Palmer is the chief executive of Tharsus, a robotics company based in the northeast, which has invested in making the company’s factory floor Covid safe and has developed an innovative personal motion system, with wearable devices and data management, to help other companies understand the way their workers move around a workplace and when they interact.

Palmer, unlike Mullins, does not think changing contracts to mandate vaccination would help make his own workplace safer.

“It would be over-emphasising one element [of workplace safety],” he says. “It’s definitely not an inclusive thing. The last 12 months have shown there isn’t a silver bullet – we need a very holistic approach to how we deal with this. I also don’t think a business really has a right to impose a rule on being vaccinated.”

In the end, changing contracts might be unnecessary.

Vaccine take-up in the UK has so far has been encouragingly high, at more than 90 per cent among the over-75s.

“Is there a real demand for attaching legal imperatives to this when it seems many people are willing to take the vaccine anyway?” asks Daniel Parker of Winckworth Sherwood.