As the government restrictions in relation to the COVID-19 pandemic continue to be lifted, there is much debate about how it affects people at work.
In this article we look at whether an employee can be required to have the Covid-19 vaccine?
It should be noted from the outset that there is currently no legislation that would require an employee to have a COVID-19 vaccination. However, the Government has recently consulted on making vaccination a condition of deployment in older adult care homes.
It is the government’s intention to legislate to require all Care Quality Commission regulated service providers to allow entry only to those who have completed the course of vaccines or are exempt. This would apply to all care homes in England which provide accommodation for persons who require nursing or personal care.
Readers should note that it is the government’s intention for this apply to any professionals visiting a care home. This could include as an example tradespeople.
An individual cannot be forced to have a COVID-19 vaccine. However, if it becomes mandatory in care homes, employers might be left to dismiss an employee who continues not to be vaccinated. Any legalisation passed by the Government may be open to legal challenge.
An employer may find that a blanket policy to require all staff to have a COVID-19 vaccine could risk a claim for discrimination, in particular a claim for indirect discrimination under section 19 of the Equality Act 2020.
Section 19 of the Equality Act 2020 states.
1. A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
2. For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if:
a) A applies, or would apply, it to persons with whom B does not share the characteristic,
b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
c) it puts, or would put, B at that disadvantage, and
d) A cannot show it to be a proportionate means of achieving a legitimate aim.
3. The relevant protected characteristics are:
According to the Office for National statistics report on Coronavirus and vaccine hesitancy, between 26 May to 20 June 2021, black or black British adults had the highest rates of vaccine hesitancy (18%) compared with white adults (4%). Vaccine hesitancy was higher for adults identifying Muslim (15%) or Other (11%) as their religion, compared with adults who identify as Christian (3%).
Employers could also be faced with a claim under Section 15 Equality Act 2010 which deals with unfavourable treatment because of something arising as a result of disability.
A blanket policy to require all staff to have a COVID-19 vaccine would need to be drafted carefully and will need to be capable of objective justification. There are likely to be other less onerous measures which an employer could deploy to make sure that they are complying with their common law duty of care and complying with the Health and Safety Work etc Act 1974. Each case is however likely to be fact specific. Consideration would also need to be given to those individuals who for medical reasons cannot get vaccinated.
If you would like to discuss this or another employment matter with us, please contact our employment team here.
This article was written by Alex Pearce Senior Associate in our Employment Law Team The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2021.