Vaccinations: what are the discrimination risks?

In one of our earlier briefings “Vaccinations: can you make them compulsory?” there are a number of considerations when assessing whether it would be appropriate to require employees to be vaccinated.

The ACAS guidance confirms that employers should listen to employees’ concerns and be “sensitive towards individual situations”. As part of this process, it will be essential for an employer to consider if someone's reason for not wanting the vaccine could be protected from discrimination by the Equality Act 2010.

So, what if an employer insists that all staff are vaccinated as a condition of recruitment, continuing to work or, as the case may be, returning to work?

The application of such a policy may give grounds for claims of ‘indirect discrimination’ under the Equality Act 2010. This happens when there’s a provision, criterion or practice (“PCP”) which applies to all employees but places some at a disadvantage due to a ‘protected characteristic’. The policy will be unlawful unless it can be shown that it is in the circumstances justified.

What protected characteristics could be relevant? 

There are a number of ‘protected characteristics’ which may be relevant when considering the implications of vaccination.

1. Age: First on the list is ‘age’. There may be an 'age divide' with older workers being pro-vaccine and younger workers not wanting to have the vaccine. Could a blanket policy that all employees will be required to vaccinate be regarded as age-biased? The added complication is that younger workers are unlikely to receive the vaccine until the last phase of vaccination, which could be the autumn at the earliest.  
2. Disabled person: For those employees who meet the definition of a disabled person under the Equality Act 2010, a ‘policy’ of compulsory vaccinations may present a real risk if vaccination is not suitable for an individual due to potential reaction with any underlying health issues. Any subsequent action taken against the employee for failing to have the vaccine could amount to unlawful discrimination unless the employer could show their actions were justified in that they were proportionate to achieve a legitimate aim. This is likely to be difficult in most workplace circumstances. It may also be a failure to make reasonable adjustments.
3. Pregnancy or sex: Similarly, claims could arise on the grounds of pregnancy or sex. Due to the lack of clinical testing of the vaccine the Government guidance indicates that the vaccine is not recommended for those who are pregnant, breastfeeding or planning to get pregnant. That would appear to give such employees a legitimate reason to refuse the vaccine even in the face of an employer’s policy to the contrary. 
4. Religion or belief: There could also be some risk of discrimination claims on grounds of religion or belief. Whilst most religions do not disagree with vaccination in principle, there may be objections as a result of the vaccine containing ingredients that are contrary to their beliefs. Ethical veganism has been found by employment tribunals to be capable of being a philosophical belief so that objections on the grounds that the vaccination contains animal-based ingredients or has been tested on animals may need to be considered. 

Finally, it is even possible that some may argue that a strongly held ‘anti-vac’ belief may qualify for protection as a philosophical belief. It would depend if that could be described as a "philosophical belief that is genuinely held, that is cogent, serious and applies to an important aspect of human life or behaviour". The belief must also be worthy of respect in a democratic society, and not affect other people's fundamental rights. Whether the belief is protected is likely to depend on the individual circumstances, but it is theoretically possible that this type of belief could be protected. As a result, requiring an individual to act in contravention of this belief could be unlawful

Key issues employers should consider

The key issue will be whether the employer can show that the PCP was justified. That means that it was proportionate means of achieving a legitimate aim. Whilst taking steps to protect the health and safety of employees will likely amount to a legitimate aim, it is the proportionality of the PCP that may prove more difficult to establish. 

The circumstances will need to be carefully taken into account, the particular role and workplace setting. The degree of risk that employees face in their role and importantly the availability of other steps that could be taken to provide protection. It is possible that a PCP seeking to exclude employees who refuse vaccination will be found to be proportionate in extreme cases. However it will be important to first consider whether there is any other option open to the employer as proportionality will be judged taking into account whether those options would have been sufficient 

The test is similar to, but not the same, as that discussed in our previous article Vaccinations, unfair dismissal and the band of reasonable responses in which we considered whether an employer would have a defence to a claim for unfair dismissal.

In light of these considerations, employers should be prepared to consider other alternatives, such as continued working from home or regular testing of employees who have not been vaccinated.