No Jab? - No Job!?
No Jab? – No Job!
Could this be a new term and condition offered this year and next by employers insisting that staff receive the COVID 19 vaccine? Care is needed.
Care in carrying out an Equality Impact Assessment (EIA). An EIA should always be considered carefully when updating existing policies and procedures as well as those for new workplace or customer facing situations.
And the COVID 19 vaccine presents a number of EIA questions which should be actively addressed by any employer making fresh arrangements for a workplace vaccination policy and programme.
Employers have a duty to ensure, as far as reasonably practicable, the health and safety at work of their employees. Asking employees to agree to a vaccination against coronavirus (COVID-19) is likely to be a reasonable step to take to reduce the risk to employees' health.
However, if employees do not agree to a vaccine, employers are limited in what they can do, beyond encouraging take up. An employer could consider informing employees that refusing a vaccination could lead to disciplinary action. There is a risk that such a policy could cause employee relations problems, as employees may feel strongly that this should be a personal decision. It would also raise a number of legal issues, with a particular risk of complaints relating to discrimination on grounds of some of the Protected Characteristics in the Equality Act 2010.
What might these discrimination issues be?
Almost certainly companies and organisations will need to think about: -
Age:
Public Health England’s vaccine priority groups are based, among other things, on age. The Government has confirmed that Phase 2 of the rollout will continue to be based on age. The COVID-19 roadmap said that everyone aged 18 and over should have been offered their first dose by 31 July 2021. This means that, for now, many younger workers are unable to be vaccinated.
? Disability:
Some individuals may be unable to receive the vaccine because of an underlying health condition that constitutes a disability for the purposes of the Equality Act 2010. The UK Joint Committee on Vaccines and Immunisation’s guidance says that the vaccine may not be suitable for immunosuppressed people.
? Pregnancy:
Public Health England advises that those who are pregnant should not routinely have the vaccine.
? Race:
Vaccine uptake has been lower in BAME communities. The UK Government’s Scientific Advisory Group for Emergencies (SAGE) says potential reasons include barriers to access, perceptions of risk, lack of vaccine offers and higher levels of distrust.
? Religion or belief:
People who hold certain religions or non-religious beliefs (e.g., veganism) might object to vaccines if they contain animal products. The NHS website says that the current approved COVID-19 vaccines do not contain any animal products. A person who objects to vaccines because they believe they are unsafe may try to argue that this is a protected philosophical belief under the Equality Act 2010.
- Employees with caring responsibilities
Another particular area of concern has been employees who are unable to go to work because they have caring responsibilities. School closures and caring for children from 4 January 2021 primary schools, secondary schools and colleges in England moved to remote learning. This meant many parents had increased childcare responsibilities. While schools re-opened for all pupils on 8 March 2021, parents may still need time off to care for a child who is required to self-isolate either because they tested positive or someone in their school bubble tested positive.
Employees do not have a general statutory right to refuse to attend work because they have childcare responsibilities. Employees do have a right to a reasonable amount of time off for dependants and a right to four weeks of parental leave per child, but both of these are unpaid. Parents who need to time off to care for a child could be furloughed under the UK Coronavirus Job Retention Scheme (CJRS) if they are eligible.
Returning to work ACAS guidance on COVID-19 and caring responsibility says employers should consider options that can provide support to parents. Employers will also need to take note of the fact that caring responsibilities disproportionately fall on women and ensure that their policies are not indirectly discriminating against female employees.
- Caring for people who are vulnerable to COVID-19.
A person may have concerns about going to work because they care for a person who is vulnerable to COVID-19. Protection from health and safety detriments does cover employees who take steps to protect ‘others’ from serious and imminent danger. Barristers have suggested that this might provide protection to a person who refuses to go to work because they live with a vulnerable or extremely vulnerable person.
However, in this context it should be noted that the Government’s guidance on shielding says that those who live with an extremely vulnerable person can continue to go to work if they are unable to work from home. The Government has produced guidance on how to safely care for a friend or family member who is vulnerable to COVID-19. Ultimately these issues will turn on the facts of an individual case.
Any or all of the foregoing scenarios will need to be judged objectively on their individual merits. That rather slippery word “proportionality” will need firming up.
Proportionality
The Equality and Human Rights Commission’s (EHRC) Employment Statutory Code of Practice explains the meaning of proportionality: Although not defined by the Act, the term ‘proportionate’ is taken from European Directives and its meaning has been clarified by decisions of the UK courts. Caselaw views treatment as proportionate if it is an ‘appropriate and necessary’ means of achieving a legitimate aim.
But ‘necessary’ does not mean that the provision, criterion, or practice is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means. A tribunal may consider whether there were alternatives to a mandatory vaccine policy, such as offering on-site lateral flow tests to those who cannot, or will not, get vaccinated due to a protected characteristic.
Keep safe and up to date!
You will know that a fast moving and changing situation surrounds the pandemic. Other new scenarios are likely to need attention.
Get in touch if we can help.
And here is a selection of useful official links to guidance on the vaccine and UK employment matters. Some of these links have transferable learning points for people living and working in other jurisdictions: -
COVID-19 vaccination first phase priority groups - GOV.UK (www.gov.uk)
Keep safe!