Workplace Vaccination Part 1: will an employer’s policy breach discrimination law?

Thu, 16 Sep 2021

Workplace vaccination is a hot potato. Many employers want to know whether they can or should adopt a policy: “No jab, no job” – “No jab, no frontline duties” – “No jab, no return to the office”… are just some of the proposals being mooted.

But what is the discrimination law angle? If an employer chooses to adopt a vaccination policy, what is the risk that it will lead to discrimination claims from unvaccinated staff? Take three practical examples:

1. Disabled employees

X refuses to be vaccinated because he is worried the vaccine may have side-effects. He has a blood disorder and has read about the risk of blood clots linked to the AstraZeneca vaccine. His doctors have tried to persuade him to take the Pfizer vaccine instead. He does not trust them. Through his own research, he has read that Pfizer itself may be linked to a risk of myocarditis (inflammation of the heart muscle). He is uncomfortable with that risk because he has a history of cardiac problems. Can an employer treat X differently because he is unvaccinated?

The issue here is that X’s underlying medical conditions (blood disorder, cardiac problems) may well amount to “disabilities” under s.6 of the Equality Act 2010. His reasons for refusing vaccination are directly linked to both those disabilities. Under s.15 of the Act, the employer is arguably prohibited from treating X unfavourably because of his unvaccinated status – it “arises from” his disabilities. Any action the employer does take against X will be unlawful discrimination, unless it can show it is a “proportionate means of achieving a legitimate aim” (the PROMALA defence).

2. Pregnant employees

Y is pregnant. She declines the vaccine because she is worried that it may affect her unborn child. Y’s employer points her to the current Government advice. It is contained in a handbook for health professionals entitled “Immunisation against Infectious Disease”, also known as the Green Book:

https://www.gov.uk/government/publications/covid-19-the-green-book-chapter-14a.

The Green Book says that COVID vaccinations pose “no known risk” to pregnant mothers. However, Y makes a fair point: the only reason there is no known risk is because there have been no large clinical trials involving pregnant women (Chapter 14a, p.23).

The problem here is that Y’s unvaccinated status is linked directly to her pregnancy. If the employer treats her unfavourably, it is arguably “because of her pregnancy” and so unlawful under s.18 of the Equality Act 2010. The counter-argument is that Y’s attitude towards vaccination is separable from her pregnancy. Many pregnant women have taken the vaccine without any risk. Can Y’s employer overrule her concerns because it considers them unscientific? Is it wise for the employer to engage in a medical debate with its employee, or should it simply respect her personal choice and make an exception just for her?

3.Employees with a religious or ethical belief

Z rejects vaccination as a matter of principle. She objects to the fact that some of the vaccines experimented on aborted foetal tissue during their testing and development phase. She refuses to have anything to do with them given her deeply-held views on abortion. Can her employer enforce a policy against her?

The issue here is that Z’s views probably could qualify as a protected religious or philosophical belief under s.10 of the Equality Act. They probably would meet the five Grainger criteria (laid down in Grainger plc v Nicholson [2010] IRLR 4). If an employer dismisses Z because of her belief, it could become liable for direct discrimination under s.13 of the Equality Act 2010. On the other hand, what if the employer creates an exception for Z, but then other employees try to “jump on the bandwagon”? Is the employer undermining its own policy?

Concluding thoughts

In short, almost any vaccination policy creates the potential for discrimination claims. Perhaps the highest risk option for an employer is a blunt, one-size-fits-all approach to vaccination. Such a policy will overlook employees whose refusal to vaccinate is linked to an underlying protected characteristic under the Equality Act 2010. Before taking action against an unvaccinated employee, the employer must test why he or she is unvaccinated. It is also wise to leave some wiggle room in the policy. An approach that is too rigid may end up committing an employer to a discriminatory course of action.

In my next article, I will consider how employers can defend a vaccination policy and manage the risks of challenge. I will also offer some practical tips on policy design.

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