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Employment law for employees & Employment law for employers

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.

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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.

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Tania Goodman

Partner - Head of Employment

tania.goodman@collyerbristow.com



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