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22 February 2021

Why businesses won’t use “no jab, no job“ policies

Any employer that discriminates against unvaccinated people faces legal risks, reputational issues, staffing problems and extra costs.

By Will Dunn

What do the Ministry of Justice, the Vatican and Pimlico Plumbers all have in common? No, it’s not a love of gilded taps, but a new motto: nil punctum, nil officium – no jab, no job. On February 8, the Vatican issued a decree (hastily revised after an outcry on social media) that threatened workers who refused a vaccination with “consequences that could lead to dismissal”, while the Pimlico Plumbers boss, Charlie Mullins, announced last month that new applicants for roles would not be considered if they weren’t vaccinated. The Justice Secretary, Robert Buckland, claimed last week that vaccination could legally be written into contracts for new workers.

Let’s set aside the clanking irony that Pimlico Plumbers was prepared to go to the Supreme Court to dispute the idea that it actually employs its plumbers at all. Are businesses going to give the government an easy win on persuading everyone to get vaccinated?  

In a word, no. Not because it’s not in their interest – it would certainly be good for Pimlico Plumbers if all their plumbers were vaccinated – but because it’s a risky thing for business to insist upon.

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There’s an initial financial risk in this policy, in that it’s not just a case of vaccinating every new employee but of vaccinating everyone who applies for a job.

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As Carl Atkinson, a partner at the law firm Gunnercooke, told me, employment law does not start on your first day: “Everybody has to start from a level playing field.” Were employers to start requiring vaccines, Atkinson explains, “they would have to fund every applicant”.

Conveniently for Charlie Mullins, this isn’t a risk that will materialise any time soon, because Covid-19 vaccines are only available on the NHS. Both Pfizer and AstraZeneca have said they have no plans to sell their vaccines privately.

But the more serious risk for any business considering this policy is that it could lead to accusations of discrimination. “Certain groups are probably less likely to adopt the vaccine”, explains Atkinson. “This could include people with medical conditions that mean the vaccine is contraindicated, or allergies […] I suspect that pregnant women may not be wild about getting vaccinated. There may be some religious groups that don’t take up the vaccine.”

This could lead to a charge of “indirect discrimination”, he explained, as people from any of these groups would, because of their identity, be “more likely to be disadvantaged” in their application.

Discrimination can be much more expensive than unfair dismissal. The maximum payout for an unfair dismissal claim is a year’s salary, capped at £88,519. The awards for discrimination cases, however, are not capped. In 2011, Mid Yorkshire NHS Trust was found to have discriminated against one of its doctors on grounds of sex and race, while she was on maternity leave; the doctor was awarded £4.45m.

Discrimination cases are also more likely to become news and to incur reputational damage to the company. To say that anyone driving a van with your brand on it is going to jolly well get jabbed is great PR; to have prevented a pregnant woman or someone from a specific religious community from working is quite the opposite.

Then there’s the problem of data protection that would arise from a business demanding proof of vaccination. Health data is special category data, which comes with costs and further risks for businesses.

Employers that used such a policy would also face opposition from the unions, which oppose the idea.

Finally, even if the government could legislate to make discrimination against unvaccinated workers legal, businesses would  disadvantage themselves by doing so. The average cost of hiring a replacement in any job is £3,000 and 27.5 days, according to Glassdoor.

However, unworkable and implausible though it might be, the government reduces its own risks by talking up a policy that helps frame the issue of low vaccine take-up in some groups as the fault of individuals, rather than due to long-term issues of misinformation and hesitancy towards all vaccines, which are harder problems to solve. 

What is troubling is that this also suggests the government is once more willing to use the threat of unemployment, present in many people’s minds, to affect behaviour.

Last August, in a bid to help city centres, unnamed ministers and sources told the Telegraph that people who chose to continue to work from home could “find themselves in the most vulnerable position” when it came to job cuts. At a time when there was no vaccine or effective treatment for Covid-19, this was irresponsible and untrue. Any business in which employees had already shown they could work from home without it affecting productivity could have faced claims of indirect discrimination, or failure to follow the flexible working rules.

Then, as now, it wasn’t likely that businesses would follow up these vague threats – but the desire to use them hardly inspires confidence.