Could a requirement by employers for employees to vaccinate against Covid-19 lead to an increase in discrimination claims?

With news that the Coronavirus vaccine has been approved for UK use by the health regulator and could be released as early as mid-December 2020, is it possible that an employer could require all new employees or employees who are either working or returning to work to have the vaccine before being allowed to work?

It was announced on 9 November 2020 that a vaccine for Covid-19 with 90% effectiveness has been patented following successful trials. Following further testing, the health regulator, MHRA, has officially approved the Pfizer/BioNTech Coronavirus vaccine which has shown to be 95% effective across all age groups and the government can begin to roll out vaccines to the public as early as mid-December. This news is welcomed by many people, as well as many public and private sectors, who have faced an extremely challenging year.  In the first instance, care home residents and staff as well as frontline workers, within the healthcare sector, will be prioritised but then it is likely that the vaccine will be offered to other essential workers and private businesses. So, it is important to know what this means for you whether you are an employer or an employee.

Are vaccines mandatory? 

Under current UK law there are no mandatory vaccinations –  all vaccinations must be administered with prior consent. Consent can be given by an adult or legal guardian. The government has confirmed that there are no current plans to make the Coronavirus vaccine mandatory and it will be entirely voluntary when it is rolled out.

Can an employer insist that employees have the vaccine? 

For health and safety reasons, an employer can ask that employees receive the vaccination before attending their premises.  This would be due to concerns for other vulnerable/high-risk employees or customers. However, they currently cannot compel an employee to do so. Doing so could raise a number of potentially costly issues for employers and could give rise to an increased risk of discrimination claims being brought against them.

Employees who refuse the vaccine could argue that they are being indirectly discriminated against based on their religion or belief. This would be the case if they objected to having the vaccine on religious ground and they were subjected to disciplinary action or even dismissed by their employer. Under the Equality Act 2010, it is unlawful to discriminate against an individual based on their religion or beliefs so long as the belief is ‘substantial’ which means more than minor or trivial. Indirect discrimination occurs when a provision, criterion or practice is introduced in the workplace that adversely affects one particular group and not any other.  Therefore the introduction of mandatory vaccines could inadvertently affect an individual or group of people whose religion or belief is against vaccinations. However, if an employer can show that the introduction of this was a proportionate means to achieve a legitimate aim (i.e public health) then they could have a suitable defence for claims such as this. It would be up to the Employment Tribunal to determine whether the aim is legitimate.

Employers could also be faced with claims for disability discrimination if they enforce a compulsory vaccination for all members of staff. Some employees may be refusing the vaccination because of a pre-existing disability or for mental health reasons, all of which are protected under the Equality Act 2010.  Dismissing them or imposing less favourable terms to their employment as a result of their refusal could be seen as unlawful. It is also important to note at this point that claims for discrimination do not require a specific length of service and can be brought at any time, even during the recruitment stage, therefore, employers need to be mindful of whether their request is reasonable.

What is reasonable is likely to be case and sector-specific. Certain sectors (such as the NHS or care operators) may move to make vaccines a requirement of the role for public health reasons. However, this has not been confirmed. It will be more challenging to argue that there is a  requirement by employers for the vaccine in sectors where the work involved doesn’t pose any threat to other employees or customers.

An alternative to requiring employees to get the vaccination is to ensure that the workplace is Covid-19 compliant with measures such as putting social distancing in place, facilities to work from home if possible, daily cleaning of all offices, making hand sanitiser available in all communal areas. Regular communication with staff regarding the Company procedure should they be in contact with anybody with the virus or if they contract it themselves is essential. Also, employees who refuse the vaccine could be asked to make reasonable workplace adjustments to ensure that they do not come into contact with anybody that is potentially vulnerable so long as the adjustments do not negatively affect them more than others.

It is likely that further guidance will be given on this topic and as always, we will provide updates in due course.

For further help or advice, please do not hesitate to contact any member of the multi-award winning employment law team.

If you are concerned your business has made errors in the uptake and administration of the coronavirus job retention scheme (CJRS) or are facing the prospect of a Furlough Fraud investigation by HMRC, our team of specialist Furlough Fraud Solicitors can offer you tailored legal advice and specialist representation.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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