Workplace vaccination – Part 2: How can an employer defend a vaccination policy?

Tue, 05 Oct 2021

Workplace vaccination continues to be a touchy subject. Previously, we considered how an employer can open itself up to discrimination claims in the Employment Tribunal if it insists on vaccination for all its employees. Such claims are likely to come from staff who refuse the vaccine on grounds of their disability, pregnancy or a religious/ philosophical belief (see Part 1: will an employer's policy breach discrimination law?)

So how can an employer best prepare itself for such claims? If it is sued in the Tribunal, does the law offer it any opportunity to defend itself? How can it design a vaccination policy that will stand up in Tribunal?

Legal defences for employers

The rule against discrimination is not absolute; the Equality Act 2010 permits some exceptions and escape routes for employer. The difficulty is that they are hidden away, very tightly worded, and under-tested in the courts.

Let’s consider some concrete examples of how a claim/ defence may play out where an employer and employee clash on the issue of vaccination:

Scenario

 

Claim

 

Possible defence?

Employee refuses vaccination because he fears it may complicate an underlying disability.

Section 15:

Claim for discrimination arising from disability.

Section 15(1)(b):

The employer’s vaccination policy is “a proportionate means of achieving a legitimate aim” (PROMALA).

Employee refuses vaccination because she believes it may affect her pregnancy.

Section 18:

Claim for pregnancy/ maternity discrimination.

Schedule 22, para.2:

The employer’s vaccination policy is something that it is “required to do” to comply with a legal provision concerning the protection of women at work.

Employee refuses vaccination because of a firm anti-vax belief.

Section 13:

Claim for direct discrimination on grounds of belief.

Schedule 9, para.1:

The employer’s vaccination policy is an “occupational requirement” and a “proportionate means of achieving a legitimate aim” (PROMALA).

Employee refuses vaccination but works in a sector where the Government has made vaccination mandatory (e.g. care homes).

Any of the above claims.

Schedule 22, para.1:

The employer’s decision to dismiss the employee is something that it “must do” pursuant to the requirement of “an enactment”.

None of these defences are as easy as they might appear at first sight. For example, in relation to unvaccinated pregnant employees, the employer cannot rely upon a generic health-and-safety rule to justify mandatory vaccination. It can only rely upon a rule whose purpose is to protect women’s health specifically, whether in relation to pregnancy, maternity or “risks specifically affecting women”: see Schedule 22, para.2(2).

Many employers are likely to reach for the PROMALA defence. It is wider, but also presents its own practical challenges…

Practical tips on the PROMALA defence

1. Be crystal clear on your “legitimate aim”

Before adopting a vaccination policy, an employer must think through carefully exactly what it is trying to achieve. If it later wants to run a PROMALA defence in Tribunal, then it will have to demonstrate a “legitimate aim”. This will be different for each employer.

By contrast, some employers may be tempted to insist on vaccination simply because they take a strong moral or political stance – they feel vaccination is “the right thing to do” for society. This may be harder to defend. Having your own viewpoint is one thing; imposing it upon your staff is quite another. Dismissing an employee simply because they had reservations about the vaccines and they dared to differ is unlikely to be a “legitimate aim”.

2. Gather evidence on “proportionality”

Once an employer has identified its legitimate aim, it must prove that its policy is a proportionate means of achieving it. For example, if the “legitimate aim” is to minimise the spread of COVID amongst staff, then the employer must show how its policy achieves this. Ideally, this evidence would include a risk assessment with input from a health and safety consultant.

If there are already other control measures in place (social distancing, PPE, regular testing, a high level of voluntary vaccination)…then what marginal additional gain is there in imposing vaccination? Is it proportionate? Why insist on vaccination? Those will be the hard questions. 

3. Always leave room for discretion

Finally, it would be wise in any vaccination policy to leave some room for management discretion. The problem with a zero-tolerance policy is that it makes no allowances for unforeseeable or exceptional cases. Employers cannot afford to paint themselves into a corner. As we have seen, COVID presents a dynamic and ever-shifting problem. The medical understanding, the Government advice and the legal landscape are liable to change at any moment. Any policy must be agile enough to keep pace.

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