As we approach a year since the Covid-19 outbreak was declared a pandemic, the rollout of vaccines is largely being celebrated as a way out of repeated lockdowns. But while uptake is currently high and many have indicated they would queue through the night for the jag, the Government has been clear that vaccination will not be mandatory. Such a decision is likely the correct one from a legal perspective, given that a blanket rule that all citizens must receive a vaccine would raise serious questions relating to consent and disproportionate interference with fundamental rights.
On a smaller scale, there has been discussion of whether private businesses, from restaurants to airlines, could make vaccination a pre-requisite for all customers and staff. Among businesses considering these measures, a plumbing company announced that they would introduce a contractual requirement that employees be vaccinated. This has sparked discussions on the legalities of employers mandating vaccination for their employees.
Employers have duties to ensure the safety of their employees in the workplace, including in relation to the threat posed by Covid. At present, this largely means facilitating employees working from home where possible, or where this is not possible, ensuring precautions are taken to make the workplace Covid secure. Looking ahead, it is not surprising that some are considering how vaccination may allow them to more fully re-open, while continuing to fulfil these obligations and protect public health.
Despite having good intentions of promoting safety in the workplace, employers must keep it in mind that their obligations to employees extend beyond health and safety. In theory, a policy on mandatory vaccination has the potential to lead to claims of discrimination, even if the employer did not intend this effect.
A policy requiring all employees to be vaccinated may appear fair at first, but it risks indirect discrimination. Under the Equality Act 2010, employers cannot discriminate against someone on the basis of any protected characteristics. This applies to all aspects of employment. In the context of mandatory vaccination, it is possible to identify a risk of discrimination against groups or individuals on the basis of religion or belief, disability or even pregnancy.
Religion is the often-cited example when it comes to medical interventions and discrimination. All religions are protected, including smaller sects who may have less mainstream views on vaccination. In practice, the instances in which vaccination would be strongly opposed on religious grounds are likely to be rare as very few religions forbid vaccination entirely but employers should be live to the possibility.
A more likely scenario would be those with a non-religious opposition to vaccination. The matter of a protected philosophical belief is more complicated as without the markings and structure of a religion, tribunals and courts require to look closely at the nature of the belief. To attract protection, among other criteria, a belief must be genuinely held, have a level of seriousness and be acceptable in a democratic society. Some of those with more trivial or obscure objections to the vaccine may find that courts would not consider their beliefs ought to be afforded protection.
Lack of cohesion is a further factor which may rule out protection. In Conisbee v Crossley Farms Ltd and others it was held that vegetarianism lacked the cohesion necessary to be considered a protected belief, because of the multiple different reasons for adopting a vegetarian lifestyle, rather than it being a cohesive belief system. The opposite has been found in relation to veganism.
When it comes to opposing vaccination for Covid, it would likely take an exceptional case for the belief to attract protection under the Equality Act. Those opposed to the vaccine have a variety of reasons for this and identifying a cohesive belief system is not likely to be easy. Despite this, it is possible to imagine some limited situations where an individual could hold a protected belief which prevented them from having the vaccine.
Of more concern in terms of anti-discrimination law, is the possibility of a blanket rule on vaccination discriminating against those with disabilities or against pregnant women. There will be some who cannot receive the vaccine because of health conditions amounting to a disability under the relevant law. At present, guidance is not recommending that all pregnant women be vaccinated. If employers attempted to introduce a policy which amounted to a situation where no vaccine resulted in termination or refusal of employment, regardless of the individual’s circumstances, then there is a possibility that a discrimination claim may result.
Blanket policies which risk discriminating against employees are not generally a sensible approach to be taken. In addition to the potential issues of discrimination, however small in number these may be in practice, the concept of mandatory vaccination does not sit well with other rights connected to bodily autonomy. Furthermore, more scientific evidence relating to the effect on transmission and the longevity of the vaccine is necessary to know whether a requirement would be proportionate or appropriate.
Protecting employees is important but this does not mean that employers are free to introduce “no jab, no job” terms without repercussions. With untested legal and factual issues in play, employers should be very cautious about mandating the vaccination of employees.
Visit our Covid 19 legal information hub for more information.