Posted by James Sage, Partner
No jab, no job: striking the right balance
Our recent poll found that whilst 53% of care providers had over 80% of staff vaccinated against Covid-19, 20% are operating with more than 40% of their workforce unvaccinated. In the vast majority of cases, this was due to workers being unwilling or unable to have the vaccine.
This presents you with an operational and ethical dilemma– how to strike the right balance between protecting the health and safety of clients and staff and respecting the rights of staff who may have justifiable grounds to reject the vaccine.
Strikingly, 73% of care providers responding to our poll (read here) said that they would like to make a Covid-19 vaccination a condition of employment for new members of staff provided that it includes an exclusion for those who cannot have the vaccine on medical or other protected grounds.
Some of the large corporate providers have already introduced this requirement for new staff and have been outspoken about doing so. Given the pressures from existing and prospective clients and their relatives, there are likely to be commercial, as well as operational and safety, benefits to this approach. However, care needs to be taken to avoid the inherent discrimination risk of introducing such a policy.
Can you make the vaccine a condition of employment?
In short, yes but not for everyone.
Particular care needs to be taken with applicants for employment who are unable or unwilling to have the vaccine due to a protected characteristic- such as pregnancy, disability, religion or philosophical belief – under the Equality Act 2010. If you refuse to employ them because they have not had, or are unwilling to have, the vaccine, that could amount to indirect discrimination. Indirect discrimination is where you apply a policy in the same way to everyone but it disadvantages a group of people who share a protected characteristic.
There is a potential defence to indirect discrimination if the discriminatory conduct (in this case refusing employment) is a proportionate means of achieving a legitimate aim. However, it is likely to be difficult to show that a blanket ban on employment for anyone without the vaccine is proportionate, not least because a reasonable proportion of your existing workforce won’t have had the vaccine.
You will therefore need to make allowances for applicants who refuse the vaccine for reasons protected under the Equality Act and find other ways to mitigate the risks.
Getting your recruitment process right
If you intend to make the vaccine a condition of employment, you will need to carefully consider every aspect of your recruitment process to remove potential discrimination risks. For example:
- Your job advert should not include a blanket refusal on employing those without a vaccine as this would put those without a vaccine for protective reasons off applying.
- During the interview process, it is important to ask appropriate questions to enable you to fully understand any reasons for objecting to the vaccine and whether they are protected under the Equality Act as not all will be obvious at first glance. You should keep detailed notes of the conversation and reasons given.
- If you are aware that an applicant has not had the vaccine for protected reasons but decide not to appoint them for some other reason (e.g. insufficient experience), their perception could still be that the real reason for not getting the job is that they’ve not had the vaccine and that the decision is therefore discriminatory. You should therefore keep careful records of your decision making, to rebut any such allegations.
- Where an applicant does not object to having the vaccine but has not had an opportunity to get one (for example, because they are younger and new to the care sector), your offer letter will need to make having the vaccine a condition of the offer of employment.
- Your employment contracts will need to make employment conditional on the new employee having the vaccine, any subsequent boosters and any future variations of the vaccine.
Data protection compliance
Vaccine status constitutes sensitive personal health data so you need to ensure you process and retain the data in compliance with GDPR. You will also need to update your candidate and employee privacy notices.
If you need help drafting appropriate recruitment and contractual documentation to make the vaccine a condition of employment please do get in touch.
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