Background and Context
First and foremost, employers must understand the Governments guidance regarding covid vaccinations. Thus far, the UK Government has taken the view that covid vaccinations should not be mandatory. That is not to say that this position will not change, however historically, save for some surgical and dental roles where Hepatitis B vaccinations are mandatory, the Government has not made vaccinations of any kind mandatory. It is worth noting that there is an ongoing consultation as to whether to adopt a ‘vaccination passport/certificate system’, but this has been met with considerable opposition.
Main Legal Risks
The two major legal risks of asking for proof of vaccination from an Employment Law perspective are Discrimination Claims and claims for Unfair Dismissal and I will be concentrating on these issues within this article. Additionally however, in asking for proof of vaccination, secondary issues may arise regarding data protection, breach of contract and human rights violations.
Unfair Dismissal
As you may already be aware, employees who have more than two years continuous service have certain protections from dismissal. They have to be dismissed for one of the identified fair reasons for dismissal and a fair process for effecting one of those fair reasons must be followed. Further, an employee may treat themselves as dismissed on resigning from their employment subsequent to what they perceive to be a breach by the employer of a term of their contract of employment.
When assessing the risk of unfair dismissal, an employer must first understand why an employee is refusing to provide proof of vaccination. Employers must also provide proof that requesting proof of vaccination is a reasonable management instruction. This question of reasonableness will depend on a variety of factors. For example:
- The covid-19 risk assessment that the business has carried out.
- The type of job that the individual is performing.
- The sector that the business is operating in.
- Whether the individual is required to work with others in their role.
- Whether international travel is required for the role.
- How effective the businesses covid measures are, such as social distancing.
So if an employee does refuse to provide proof, what action is an employer going to take? Well if the employer does with to consider dismissal or discipline for a refusal to provide proof, it will first need to consider alternatives to providing proof such as working from home. If no alternative is available and dismissal is the only option, the reasonableness factors I have listed above will be crucial as to whether dismissal is a fair and appropriate action to take.
Discrimination Claims
Potential discrimination claims are the most contentious employment issue when it comes to requesting proof of vaccinations. Once again, as you may already be aware, under the Equality Act 2010 businesses have a duty not to discriminate against certain categories of individuals who have ‘protected characteristics’. Relevant protected characteristics in respect of vaccinations include:
1. Disability
Those who are defined as disabled under the Equality Act 2010 are:
‘Someone who has a substantial and long term physical or mental impairment that has an adverse impact on their ability to carry out day to day activities’.
Now whilst there may be a lot of people who fall within this definition in the UK, the current UK Government’s recommendations on who should not be vaccinated for health reasons is actually quite narrow. It is broadly limited to those with severe allergies. So it does remain to be seen as to actually the category of disabled workers is a material category or not. It may be a slightly narrower group that was first envisaged.
2. Pregnancy and Maternity
Initially pregnant women were advised not to be vaccinated, however this guidance changed in April 2021 meaning that this group may also be not as high risk with regards to potential discrimination claims as first envisaged.
3. Race and Ethnicity
This may also be a relevant protected characteristic given the publicised vaccine hesitancy from certain groups of ethnic minorities in the UK.
4. Age
This will also be a relevant protected characteristic if employers are imposing vaccination criteria before all ages of adult have been offered the opportunity to be vaccinated. It is anticipated that all ages will be offered the vaccine from Autumn 2021, however the potential for booster vaccinations does increase the likelihood of age continuing to be a relevant characteristic beyond this timeframe.
5. Religion and Philosophical Belief
Of particular relevance with this protected characteristic is the notoriously tricky area of philosophical belief. To highlight the fluidity of this protected characteristic, you need not look any further than the fact that a recent Employment Judgment found that ethical veganism was capable of amounting to a protected philosophical belief.
So what about anti-vaccine sentiment or vaccine hesitancy? The UK’s guidance for a belief to be protected states that:
- It must be genuinely held.
- It must be more than simply an opinion.
- It must deal with a weighty and substantial aspect of human life.
- It has to retain a certain level of cogency, seriousness and cohesion.
- It has to be worthy of respect in a democratic society.
Now whether anti-vaccine and vaccine hesitancy meet these grounds remain to be seen and this will undoubtedly become clearer over the coming months. However, it is clear that the test will be the reasoning behind the sentiment – is it based on some of the more outlandish claims regarding microchips or ‘5G’ – or is there more cogent rationale in play.
Discriminating Against Visitors
In addition to offering protection to employees, the Equality Act also affords protection to visitor, specifically where visitors are refused entry to a business. The Equality Act places an obligation on service providers to protect service users against discrimination, victimisation and harassment in the provision of services, goods and facilities as well as a duty to make reasonable adjustments.
It is worth noting that claims in this area do tend to have low financial exposure, however the potential reputational risk is very real.
Conclusion
So in conclusion, businesses are undoubtedly exposing themselves to risk by adopting a policy of requiring proof of vaccination of entering workplaces. It seems highly unlikely that adopting this policy in an office based environment will be justifiable or reasonable when other safety measures and alternatives are available. But, if a business does want to proceed, then the risks from an unfair dismissal and discrimination standpoint could be mitigated by bearing in mind these key considerations:
- Focus on establishing and updating a covid risk assessment.
- Make sure you have consulted and communicated with staff and advise visitors in advance.
- Think carefully of any exemptions to the policy for categories of individuals.
- Consider all of the alternatives and produce documents detailing these considerations.
- Think about the businesses legitimate aim.
- Consider the individual circumstances rather than just taking a blanket approach.
