Can Employers insist on no vaccine - no job?
by Tony Riley, Senior HR Consultant
In the biggest UK development on this theme the Government and NHS have recently published extensive and comprehensive guidance, policies, draft letters and FAQs on how employers and managers should treat unvaccinated staff this Spring.
There are precise guides on consultation, redeployment, and termination of employment. There is also a timetable and framework describing the sequencing and steps to assist the NHS to work towards the April 2022 deadline, when vaccines become compulsory for its workers.
All employers, regardless of jurisdiction or sector, may find these documents of interest and value. https://www.england.nhs.uk/coronavirus/publication/vcod-for-healthcare-workers-phase-2/
Will employers see mass resignations with a no jab no job policy?
There are currently some 85,000 unvaccinated staff out of a total NHS workforce of 1.35 million. Seers and prophets predict a hugely damaging impact on the NHS.
However, the USA and Australia/NZ introduced similar requirements in the second half of 2021 and the US survey data shows attrition rates at between 0.2 and 4.7%, New South Wales recently reported an attrition rate across their healthcare system of 0.1%. These are actually lower than seasonal year on year turnover norms. So, the “Great Global Resignation” may indeed be a “thing” but the evidence in Western Healthcare does not suggest that “no jab – no job” is automatically a major cause for concern for employers. Perhaps this is attributable to the core values of most healthcare workers, and the fact many have already been subject to other mandatory vaccinations such as Hepatitis B to protect themselves, patients and colleagues.
There are of course international developments that go beyond healthcare and employment.
In North America, Federal, State and City legislation has been brought in implementing “no jab – no job” or “no jab - no pay” laws in the public and indeed the private sectors. There have also been incentivising initiatives that were put in place such as New York offering public sector workers $500 vax bonuses. In Canada, the unvaccinated are banned from air, rail and sea transportation services. In most US cities you will not get into a restaurant or theatre without a vax passport.
Will there be legal challenges if employers insist on “no jab no job”?
As these events unfolded in 2021, many UK and European legal commentators predicted that such North American (and the draconian Russian and Chinese models) would not work in Europe and the ANZAC countries, where well established and strong legislation is in place covering employment and human rights. Tell that today to people in France, Italy, Spain, Portugal, Austria, the UK, Greece, Australia and New Zealand who now face restrictions not only in employment but in transportation, social life, sport and entertainment amongst others.
Interestingly, the largest and most comprehensive body of case law is probably in France where several cases have been seen, applying different claims and arguments, based on French employment law and EU Human Rights legislation. Judges have consistently found in favour of the Government and the employer thus far.
In Jersey, we don’t have specific legislation dealing with this – yet. However, we are already seeing employers limiting sick leave for the unvaccinated, and any disputes will be looking to international precedents.
We are also seeing employers with employees refusing to have lateral flow tests, to wear masks and in some cases not following covid laws.
If this is you call HR Now for advice and support.
Will the “no jab no job” policy be phased-out?
Should there be a new virulent variant after Omicron these trends are likely to accelerate. Even without a new variant and Omicron becoming better understood the trend is already expanding. There is perhaps a perceptible shift from a world where “this is a breach of my human rights and bodily integrity” is partially accepted, to a world where governments and business have the right to exclude and restrict people who they can scientifically argue, endanger others or themselves.
Novak Djokovic has discovered to his cost that public and political concerns about COVID behaviour and attitudes can have a devastating effect on his life and career.
Tony Riley is a Senior HR Consultant at HR Now, and has a 100% success rate in defending Employment Tribunals. If you’d like to contact Tony, email him tony@hrnow.je