As the UK’s vaccination programme continues at steady pace, a new battlefront is opening up on the employment field with reports that many British companies are looking to draw up “no jab, no job” contracts for existing and future staff.

While few firms have yet to publicly declare such intentions, the direction of the prevailing wind is evident in a new survey from the Chartered Management Institute (CMI), which found that more than half of managers support the right to make inoculation mandatory before employees can return to the workplace. Of the 1,050 people questioned, 20 per cent were strongly in favour of such a policy, while 38% agreed with it.

Furthermore, 43% of managers believe office access should be restricted for those who refuse to be vaccinated on non-medical grounds. More than half agreed it is part of their role to encourage employees to get a Covid jab, about the same proportion who were concerned there will be conflict between those reluctant to be vaccinated and others who feel unsafe working with them.

Anne Francke, chief executive of the CMI, said widespread take-up will allow for a “swift and safe return to work”. However, there are ethical and philosophical concerns which Cabinet Office minister Michael Gove has been asked to investigate as part of his newly-launched consultation on the viability of vaccination passports.

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Chris McDowall, partner in the Glasgow office of Anderson Strathern, said encouraging staff to have the vaccine is arguably the action of a responsible employer. However, those considering taking a “jabs for jobs” approach will have to balance several competing interests.

“We are certainly seeing that employers, especially in certain sectors, are looking to include a contractual provision which states that an offer of employment is conditional upon prospective employees having had, or producing evidence of, a Covid vaccination,” he said.

“Some employers are already doing that. It is, of course, much easier for employers to include that at the outset of the employment relationship as opposed to dealing with their existing employees where it is highly unlikely there would be an existing contractual term to cover this.”

For employees who have been with a company for at least two years, requiring a vaccination raises the prospect of triggering complaints about constructive dismissal. Scott Milligan, a partner with Harper Macleod based in Glasgow, said there are also practical barriers to introducing such a policy for new recruits.

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These include the fact that the supply of vaccines is not guaranteed. In addition, with inoculations in the UK currently only available to those over the age of 50, or those with specific medical conditions, it remains difficult at this time for employers to introduce a blanket requirement.

“At the moment, we’ve seen employers act more in line with recent ACAS guidance in relation to supporting staff to get the vaccine, rather than making vaccination compulsory,” he said.

“However, the appropriate approach will ultimately depend on a number of factors, including the type of sector the employer operates in, and it may be that, as we get further into the vaccination campaign, more employers will consider introducing guidelines, policies or contractual requirements around vaccination.”

Mandatory requirements would oblige employers to handle sensitive medical data, creating the risk of discrimination claims, particularly when an individual's refusal to get the jab is related to one of the nine protected characteristics under the Equality Act. Furthermore, there are data privacy issues under GDPR legislation that must be considered.

Whether it is lawful to require an existing employee to get a vaccination is not an easy question. In most occupations, the traditional approach has been that employers do not have the right to instruct individuals in relation to medical matters, as this potentially crosses over into human rights violations.

“This is certain to be a heavily litigated issue over the next year or so,” says Douglas Strang, senior associate at BTO Solicitors. “The answer will differ depending on whether the employee has reached the critical milestone of two years’ service and acquired the right not to be unfairly dismissed.”