No Jab, No Job?
New 'No Jab No Job' regulations came into force on 22 July making double Covid-19 vaccination compulsory for those working in, and attending, care homes in England from 11 November 2021. Similar regulations will be coming into force affecting the health service from 1 April 2022. These dates are the last dates by which someone must have both jabs – so to comply with the NHS deadline, the first jab must be had by the 3 February 2022.
The regulations are widely drawn. Within the care sector, they cover all workers, unless medically exempt, who are 18 and over whether they are directly employed, agency workers or volunteers, and whatever their job: healthcare workers, tradespeople, hairdressers, beauticians and CQC inspectors are all covered. There is an exception for those providing emergency care or emergency maintenance. From 1 April, all health care workers will also be covered. Again, this is broadly interpreted and includes for example slimming clinics and family planning clinics.
When do no jab no job regulations not apply?
These regulations do not apply in Wales, Scotland or Northern Ireland. They also do not apply to those under the age of 18, who are now of course eligible to receive two vaccinations. They also do not apply to the booster jab, although it is not unlikely that will change in the future, particularly with the evidence increasingly coming forward that it makes such a difference with the now dominant Omicron variant.
This has partly contributed to widespread staff shortages in the care sector (some of whom have been able to get jobs in the NHS where the policy is not yet enforced). The only reason the policy applies later in the NHS is because of concerns about the impact it will have on overall staffing levels which are already under immense stress, but this will be changing very shortly.
How does this affect my employment if I won’t get the jab?
Unless you are medically exempt or under 18, then you will be at risk of losing your employment. No jab, no job.
The law allows an employer to dismiss an employee if their continued employment would contravene a legal duty or restriction. This means that dismissing an employee who is employed to work in a care home and has failed to get two doses of the Covid-19 vaccine by 11 November 2021 (for care sector) or 1 April 2022 (for NHS) is potentially fair, since allowing them to attend their workplace from that date would contravene the new regulations.
But, for the dismissal to be fair overall, the employer must still act reasonably in the circumstances of each case, having regard to their size and administrative resources and “according to equity and the substantial merits of the case”. An employer’s duty to act reasonably will include procedural issues, such as giving the employee adequate notice of the need to be double vaccinated, well enough in advance for the employee to act on it.
As the first vaccination is required some two months before the deadline to allow enough time for the second to take place by the time the Regulations come into force, the employer should have given warning in advance of that date so that employees could comply with the new law. If they have failed to do that, this could make the dismissal unfair.
Employers implementing no jab, no job policies, should also be expected to find alternative employment for the employee where this is available. While there may be few opportunities to redeploy staff outside the care home or NHS itself, particularly if there are a number of staff in this situation, this may sometimes be a possibility.
But, in the short term they may be able to ask employees to take annual leave while they are waiting for a vaccination, or even unpaid leave as a last resort. Employees who have not been given their contractual or statutory minimum notice would have a claim of wrongful dismissal, which is why employers have been giving notice in advance of the deadline the regulations come into force.
If notice has not been given by the employer, then a worker would be entitled to be paid their notice (although it would be unlawful for them to work the notice if it is after these regulations are in force).
A claim for unfair dismissal may occasionally succeed but will have significant obstacles. To be eligible an employee will need to be an employee (as opposed to a worker or self-employed), and will need to have been employed for two years. Also, they will only succeed if they will be able to show that in all the circumstances it was unreasonable for them to be dismissed, which will only apply if there was some other employment, they could have done which did not contravene the regulations.
Although some cases may succeed, these will be very rare - and even then, compensation is likely to be quite limited because a tribunal will generally take the view that it was the employees “fault” they were not vaccinated.
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This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
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