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Further information on special category data

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Vaccines: time to rethink “no jab, no job”?

Two years on

The government first began the COVID-19 vaccine rollout in December 2020. At that point, it stated two doses would be necessary for an individual to be considered “fully vaccinated”.

Since then it has implemented a UK-wide booster programme, and it’s possible that there will be an annual or more frequently offered booster jab as time goes on.

There has also been a suggestion that the definition of fully vaccinated is going to be changed in 2022 to include “having had all available boosters” .

Recruitment policy

When the vaccine rollout started, some high profile employers, such as Pimlico Plumbers, indicated that they would be implementing a recruitment policy of “no jab, no job”. It was their intention to only hire those individuals who had been fully vaccinated.

At that stage, we advised you this was a dangerous route to go down. This was because you couldn’t force - and still can’t force - any new hire, or for that matter, an existing employee, to be vaccinated.

Discrimination issues

In addition, a clause of this nature could be considered discriminatory to certain groups or individuals, e.g. those who can’t have vaccines for medical reasons or object to them on religious grounds, or due to ethical or philosophical beliefs.

Since we last gave our advice on this issue, the government has passed two sets of regulations which mandate COVID-19 vaccines for certain workers and volunteers in England, namely the care sector and NHS frontline workers. Does this change our advice?

No jab, no job

If you are an employer in one of these areas, you will now be able to have what is, effectively, a “no jab, no job” recruitment policy. That said, any potential employee may still have a valid exemption which you must always consider. Fail to do so and you could invite a discrimination claim.

For employers in other sectors, our advice is unchanged - don’t introduce a “no jab, no job” policy. It remains dangerous territory for the reasons we’ve already stated.

Tip. As time goes on, such a policy would probably become difficult to police and enforce, particularly if the definition of fully vaccinated is changed at some point to include having had all available boosters. In addition, some individuals may not feel comfortable having any boosters, particularly if they’ve had a previous adverse reaction to a COVID-19 vaccine which could mean that you lose out on a strong candidate.

Tip. When you’re hiring new employees, only ask for their COVID-19 vaccine status if you genuinely need that information and it’s relevant to the job role. The information is classed as special category personal data (see The next step ).

For further information on special category data, visit https://www.tips-and-advice.co.uk , Download Zone, year 24, issue 2.