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Vaccines: Do not fall foul of discrimination!

24th Feb 2021
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With the UK's COVID-19 vaccine rollout well under way and proving to be much more of a success than anyone could have dreamt of, employers may be forgiven for pinning their hopes that working life will soon be back to normal.  But what will this new ‘normal’ look like?  Will employers have the right to mandate vaccines for their staff like Chris Mullins, CEO of Pimlico Plumbers, has vowed to do?  How can employers facilitate a return to the workplace in 2021 without being in breach of employment law and their duties as caring employers?

Whilst it is totally understandable that some employers may want to force, on a mandatory basis, employees to have the vaccine in certain instances it may not always be the right approach.  On one hand, imagine a care home-owner explaining to their residents and families, that a number of their employees have refused to have the vaccine - and are caring for patients, possibly passing on COVID-19. The emotional, reputational, financial and legal risks in this scenario are without doubt, simply huge. However, on the other hand, is it not discriminatory to mandate vaccines if certain staff cannot have it due to say, medical reasons?  We recommend careful assessment on a case-by-case basis. While it is likely that employers could terminate employment where employees refuse the vaccine, the key issue here is to understand why they refuse, the implications for your business, and how to take legal, but swift and appropriate action.

As an employer, you will want to ensure that whatever action you do take it is not only in the best interest of your staff and business but above the law.  Afterall, you will want to avoid the risk of any potential discrimination claims.

The Equality Act 2010 lists nine protected characteristics (disability, race, religion, belief, age, sex and pregnancy) which can form the basis for a direct or indirect discrimination claim.  These could be used by employees to bring a discrimination claim in relation to a mandatory vaccination policy.  Here are some points to think about:

Disability: It is important to remember that some individuals may be advised by medical professionals not to have the vaccine due to an existing condition.  You would need to weigh up the risk of disability discrimination claim by the employee, the needs of your business, and your ability to terminate your employee’s employment due to a lack of capability on their part to carry out the role.   

Race, Ethnicity, Religion: Requiring certain groups to vaccinate could lead to direct or indirect discrimination claims.  Research and news reports suggest that certain ethnic and religious groups are less likely to take up the vaccine due to government mistrust.   You would need to understand the employee’s reason for refusing the vaccine, and take action to terminate only if you are secure that your reasons for terminate can be justified and are not, in fact, due to the employee’s race, but their vaccine refusal.

Age. With the vast majority of the older population being vaccinated first, younger workers may be directly discriminated against if they cannot work due to an employer’s mandate for vaccination of workers when it is not yet available to them.

Pregnancy. Today, government advice is for pregnant women to consider vaccination if they have underlying conditions that may put them at higher risk of complications caused by COVID. If a female in such a position is subjected to unfavourable treatment, she could claim direct discrimination.

Discrimination claims are not the only claims that should be on an employer’s radar.  Vaccination policies will no doubt be the cause of unfair dismissal claims further down the line too.  If an employer is faced with a staff member’s unreasonable refusal to follow a reasonable instruction, he/ she could begin disciplinary proceedings and ultimately dismiss the employee.  However, to ensure a fair dismissal the employer must have a fair reason and follow a fair process. If they do not, the dismissed employee could claim unfair dismissal.

Whilst mandatory vaccination policies may be a good idea in principle, they can lead to a number of legal issues and regulatory breaches.  Employers should ensure that they consider all avenues, including incentivising staff rather than forcing the vaccine before implementing stringent policies.  If a stringent policy is what is needed employers would be wise to seek legal help to ensure they cross all their Ts and dot all their Is.   A legal solution moving forward is always possible.

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