Longer Reads

Are Vaccination Policies at Work Discriminatory?

The UK has now given the first dose of the Covid-19 vaccine to over 15 million people and the second dose to over half a million. Despite the vaccine offering a route back to some normality it has been reported that only around 76% of people would accept the offer of a vaccine. Employers have a duty to protect the health, safety and welfare of their employees and others so, can employers force their workers to get the vaccine? If so, a ‘Vaccination Policy’ requiring staff to get  vaccinated to protect the wider workforce seems a logical step to take – but it is not as simple as that.

2 minute read

Published 17 February 2021

Authors

Share

Key information

ACAS guidance

ACAS (the body which deals with employee/employer disputes in the first instance) has taken the view that employers cannot require employees to take the vaccine and should listen to concerns if staff refuse to take it (read more here). However, if the reason/s for refusing to take the vaccine are ‘unreasonable’, then employers might be able to take disciplinary action.

The relevant considerations when determining whether disciplinary action should be taken are whether:

  • there is a Vaccine Policy in place; and
  • the vaccine is necessary for the worker to do their job; and
  • an employee’s reason for not wanting the vaccine might be protected under the Equality Act 2010.

In this article we consider the third factor which relates to potential discrimination in the workplace.

Discrimination issues

Section 4 of the Equality Act 2010 (the Act) lists the ‘protected characteristics’ for which a worker should not be subjected to detriment. If a worker’s reason for not wanting the vaccine relates to a protected characteristic, such as disability, maternity status, or religion or belief, then subjecting that worker to detriment (such as disciplinary action) for not being vaccinated could amount to a discriminatory act for which the worker could bring a claim in the Employment Tribunal.

  1. Disability discrimination

Some people are not able to receive the vaccine for health reasons. ‘Disability’ is defined by section 6(1) of the Act as having a long term physical or mental impairment that has a substantial and long-term negative effect on an individual’s ability to undertake normal daily activities.

Subjecting a worker to detriment because they will not take the vaccine in breach of a Vaccine Policy due to their disability is likely to be discriminatory. Furthermore, employers have a duty to make reasonable adjustments for workers with disabilities. Making exceptions for these workers in a Vaccine Policy could constitute a ‘reasonable adjustment’ helping to avoid the risk of a claim.

Maternity discrimination

Workers must not be discriminated against because of their maternity status. Public Health England has advised that pregnant women or those who plan a pregnancy within three months of the first dose should not take the vaccine. As above, allowances in any Vaccine Policy could help employers navigate this issue. Employers should also be mindful that workers may not wish to divulge this information, so particular care must be taken here.

  1. Religion or belief discrimination

This characteristic is arguably the most difficult for employers to navigate. As dangerous anti-vaxxer movements gain momentum, what constitutes ‘belief’ for the purposes of discrimination legislation needs to be closely examined.

The Employment Appeal Tribunal found in the case of Grainger v Nicholson [2010] IRLR 4 that for a viewpoint to amount to a ‘belief’ for the purposes of discrimination law:

  • The belief must be genuinely held;
  • It must be a belief, not an opinion of viewpoint based on the present state of information available;
  • It must be a belief as to a weighty and substantial aspect of human life and behaviours;
  • It must attain a certain level of cogency, seriousness, cohesion and importance; and
  • It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

In our opinion, anti-vaxxers may have ‘a viewpoint based on the present state of information available’. If this were found to be the case, the opinion that vaccines should not be taken would fall short of the threshold required for anti-vaxxers to be afforded protection by discrimination law due to their belief.

Even if the viewpoint is found to constitute a ‘belief’, workers seeking to rely on this characteristic may struggle to demonstrate that it does ‘not conflict with the fundamental rights of others’. There are people who cannot have the vaccine and must rely on others getting it to protect them as the circulation of the virus would be reduced. An individual’s health (and in some cases, their human right to life) is likely to amount to a ‘fundamental right’.

  1. Proportionate means of achieving a legitimate aim?

Even if an act is discriminatory, it could be excused if it is a ‘proportionate means of achieving a legitimate aim’. A Vaccine Policy aims to protect workers’ health which is likely to be considered a legitimate aim. However, there are other ways of furthering that aim which could be more proportionate than insisting that workers with protected characteristics get vaccinated, such as implementing a face mask policy.

We think forcing a worker to get a vaccine when it is against that worker’s protected characteristic is unlikely amount to a proportionate means of achieving a legitimate aim, so any detriment suffered by that worker for breaching the Vaccine Policy is unlikely to be excused and this heightens raises the risk of a claim.

Conclusion

Employers should certainly consider having a Vaccine Policy in place, particularly where a vaccine is necessary for a worker to carry out their job. However, when it comes to implementing that policy and initiating disciplinary procedures against those who do not comply, employers need to be careful that they do not discriminate against their staff for the reasons explained above or they risk being on the receiving end of discrimination claim.

If you have any questions about Vaccination Policies or any other employment related queries the Collyer Bristow Employment Team is on hand to help.

Related latest updates
PREV NEXT

Related content

Arrow Back to Insights

Longer Reads

Are Vaccination Policies at Work Discriminatory?

The UK has now given the first dose of the Covid-19 vaccine to over 15 million people and the second dose to over half a million. Despite the vaccine offering a route back to some normality it has been reported that only around 76% of people would accept the offer of a vaccine. Employers have a duty to protect the health, safety and welfare of their employees and others so, can employers force their workers to get the vaccine? If so, a ‘Vaccination Policy’ requiring staff to get  vaccinated to protect the wider workforce seems a logical step to take – but it is not as simple as that.

Published 17 February 2021

Associated sectors / services

  • Employment law for employees
  • Employment law for employers

Authors

ACAS guidance

ACAS (the body which deals with employee/employer disputes in the first instance) has taken the view that employers cannot require employees to take the vaccine and should listen to concerns if staff refuse to take it (read more here). However, if the reason/s for refusing to take the vaccine are ‘unreasonable’, then employers might be able to take disciplinary action.

The relevant considerations when determining whether disciplinary action should be taken are whether:

  • there is a Vaccine Policy in place; and
  • the vaccine is necessary for the worker to do their job; and
  • an employee’s reason for not wanting the vaccine might be protected under the Equality Act 2010.

In this article we consider the third factor which relates to potential discrimination in the workplace.

Discrimination issues

Section 4 of the Equality Act 2010 (the Act) lists the ‘protected characteristics’ for which a worker should not be subjected to detriment. If a worker’s reason for not wanting the vaccine relates to a protected characteristic, such as disability, maternity status, or religion or belief, then subjecting that worker to detriment (such as disciplinary action) for not being vaccinated could amount to a discriminatory act for which the worker could bring a claim in the Employment Tribunal.

  1. Disability discrimination

Some people are not able to receive the vaccine for health reasons. ‘Disability’ is defined by section 6(1) of the Act as having a long term physical or mental impairment that has a substantial and long-term negative effect on an individual’s ability to undertake normal daily activities.

Subjecting a worker to detriment because they will not take the vaccine in breach of a Vaccine Policy due to their disability is likely to be discriminatory. Furthermore, employers have a duty to make reasonable adjustments for workers with disabilities. Making exceptions for these workers in a Vaccine Policy could constitute a ‘reasonable adjustment’ helping to avoid the risk of a claim.

Maternity discrimination

Workers must not be discriminated against because of their maternity status. Public Health England has advised that pregnant women or those who plan a pregnancy within three months of the first dose should not take the vaccine. As above, allowances in any Vaccine Policy could help employers navigate this issue. Employers should also be mindful that workers may not wish to divulge this information, so particular care must be taken here.

  1. Religion or belief discrimination

This characteristic is arguably the most difficult for employers to navigate. As dangerous anti-vaxxer movements gain momentum, what constitutes ‘belief’ for the purposes of discrimination legislation needs to be closely examined.

The Employment Appeal Tribunal found in the case of Grainger v Nicholson [2010] IRLR 4 that for a viewpoint to amount to a ‘belief’ for the purposes of discrimination law:

  • The belief must be genuinely held;
  • It must be a belief, not an opinion of viewpoint based on the present state of information available;
  • It must be a belief as to a weighty and substantial aspect of human life and behaviours;
  • It must attain a certain level of cogency, seriousness, cohesion and importance; and
  • It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

In our opinion, anti-vaxxers may have ‘a viewpoint based on the present state of information available’. If this were found to be the case, the opinion that vaccines should not be taken would fall short of the threshold required for anti-vaxxers to be afforded protection by discrimination law due to their belief.

Even if the viewpoint is found to constitute a ‘belief’, workers seeking to rely on this characteristic may struggle to demonstrate that it does ‘not conflict with the fundamental rights of others’. There are people who cannot have the vaccine and must rely on others getting it to protect them as the circulation of the virus would be reduced. An individual’s health (and in some cases, their human right to life) is likely to amount to a ‘fundamental right’.

  1. Proportionate means of achieving a legitimate aim?

Even if an act is discriminatory, it could be excused if it is a ‘proportionate means of achieving a legitimate aim’. A Vaccine Policy aims to protect workers’ health which is likely to be considered a legitimate aim. However, there are other ways of furthering that aim which could be more proportionate than insisting that workers with protected characteristics get vaccinated, such as implementing a face mask policy.

We think forcing a worker to get a vaccine when it is against that worker’s protected characteristic is unlikely amount to a proportionate means of achieving a legitimate aim, so any detriment suffered by that worker for breaching the Vaccine Policy is unlikely to be excused and this heightens raises the risk of a claim.

Conclusion

Employers should certainly consider having a Vaccine Policy in place, particularly where a vaccine is necessary for a worker to carry out their job. However, when it comes to implementing that policy and initiating disciplinary procedures against those who do not comply, employers need to be careful that they do not discriminate against their staff for the reasons explained above or they risk being on the receiving end of discrimination claim.

If you have any questions about Vaccination Policies or any other employment related queries the Collyer Bristow Employment Team is on hand to help.

Associated sectors / services

  • Employment law for employees
  • Employment law for employers

Authors

Need some more information? Make an enquiry below.

    Subscribe

    Please add your details and your areas of interest below

    Specialist sectors:

    Legal services:

    Other information:

    Jurisdictions of interest to you (other than UK):



    Article contributor

    Enjoy reading our articles? why not subscribe to notifications so you’ll never miss one?

    Subscribe to our articles

    Message us on WhatsApp (calling not available)

    Please note that Collyer Bristow provides this service during office hours for general information and enquiries only and that no legal or other professional advice will be provided over the WhatsApp platform. Please also note that if you choose to use this platform your personal data is likely to be processed outside the UK and EEA, including in the US. Appropriate legal or other professional opinion should be taken before taking or omitting to take any action in respect of any specific problem. Collyer Bristow LLP accepts no liability for any loss or damage which may arise from reliance on information provided. All information will be deleted immediately upon completion of a conversation.

    I accept Close

    Close
    Scroll up

    Find out about Business

    Find out about Dispute Resolution

    Find out about Individuals & Families

    Find out about Real Estate

    We are Collyer Bristow - The law firm for those that
    value individuality, creativity and collaboration.

    Legal & Pricing info Regulatory InformationAccessibilitySitemapPricing and service information

    Listen to our latest podcast: Budget Miniseries: Impacts on Families with US Connections (Part 1)

    Listen to our latest podcast: Cracking the Code on Directors’ Service Agreements

    Read our latest article: Economist, or just economical with the truth? How can employers respond to ‘fake claims’ on a CV?

    Listen to our latest podcast: Autumn Budget 2024 Special (Part 2)

    Read our latest article: ‘Promoting the integrity of the register’: The new Companies House approach to non-compliance

    ExpandNeed some help?Toggle

    < Back to menu

    I have an issue and need your help

    Scroll to see our A-Z list of expertise

    Get in touch

    Get in touch using our form below.



      Business Close
      Private Wealth Close
      Hot Topics Close