Vaccination scheme had legitimate aims and that penalties and fines were proportionate.
With the UK's vaccination scheme now in full swing the debate has been intensifying about whether vaccinations should be made compulsory for everyone who can take them.
To date the UK government has shown no intention to make vaccines compulsory by law, with emphasis being placed on encouraging vaccination and providing information. The government is taking steps to allow individuals to prove they have had vaccines, which for the time being are focused on helping individuals to travel abroad.
There have been statements from some organisations expressing support for vaccine certificates, an intention to make vaccination mandatory for some staff, or not to serve customers who cannot show that they are vaccinated. Other organisations have made clear that they do not intend to put any such measures in place.
As with many issues related to the pandemic, the law is very much in unchartered territory and there is relatively little precedent in case law to determine one way or another whether forcing employees to get vaccinated would be a breach of legal protections and rights, such as protection against discrimination. For more on the discrimination aspect of vaccines, see our article Can employers insist that employees are vaccinated against Covid-19?
Another interesting area is whether forcing people to be vaccinated would breach articles of the European Convention on Human Rights (ECHR). An interesting recent case from the Czech Republic saw the European Court of Human Rights (the Court) consider whether a mandatory vaccination scheme for school children breached their and their parents' rights to respect for a private and family life and their right to freedom of expression and belief. Although this case does not concern employment rights, it provides an interesting insight into how the Court might approach such questions in an employment context.
Under Czech law, children must have specific vaccinations to be admitted to a nursery. From the age of compulsory education, unvaccinated children are permitted to attend school, but their parents can be subject to fines. There are exceptions to these rules where the child has health issues, for example where a condition prevents vaccination.
The applications to the court were in relation to children who had been prevented from attending pre-schools or nurseries because they had not been vaccinated according to Czech law, and fines issued against parents for failing to ensure that their children received mandated vaccinations.
The Court has previously established that compulsory vaccination is an involuntary medical intervention amounting to an interference with the Article 8 right to respect for a private and family life. In this case the Court found that, although no vaccinations had been performed in these cases, the vaccination duty and direct consequences of non-compliance amounted to an interference with that right.
However, Article 8 is a qualified right, which means it is permissible to infringe on it if interference is in accordance with the law, is undertaken in the pursuit of a legitimate aim and is necessary in a democratic society.
The mandatory vaccination programme was an obligation enshrined in Czech law and was imposed with the aim of protecting the health and rights of children, in particular with the legitimate aim of protecting those children who could not take the vaccines themselves and had to rely on the children around them being vaccinated for protection.
In assessing whether the interference with the applicants' rights had been necessary in a democratic society, the court weighed several factors. The Court noted that no vaccinations had been administered against an applicant's will, nor could they be under the domestic law. In addition, the consensus of experts and authorities on this issue was that vaccination was widely considered to be one of the most successful and cost-effective health interventions and that each state should aim to achieve the highest possible level of vaccination.
On proportionality, the indirect enforcement via fines was found not to be onerous and the exclusion from pre-school and nursery, whilst disadvantageous, did not extend to compulsory age schooling. These detriments were measured against the aim to safeguard the health of young children and the fact that it was essentially a protective rather than a punitive measure.
In conclusion, the measures complained of by the applicants were lawful and proportionate to the legitimate aims pursued by the Czech state, and could therefore be regarded as being necessary in a democratic society.
The Court also decided that the applicants' rights under Article 9 (the right to freedom of thought, conscience and religion) had not been violated because, they had not established that their critical opinion on vaccination was of sufficient strength, seriousness, cohesion and importance to constitute a conviction or belief benefitting from the protection of Article 9.
It is worth starting by saying that the UK's departure from the EU has no bearing on the impact of the ECHR in the UK and so this decision remains binding.
This decision is a useful reminder of the principles of Articles 8 and 9 ECHR in the context of mandatory vaccinations. Although it would suggest that a regime of penalties to increase take up of vaccinations might not be a breach of ECHR rights, it is important to note that any such regime would need to be proportionate in its impact on individuals. Measures which lead to dismissal from employment for a refusal to be vaccinated might in some cases be found to be disproportionate to the aim of protecting other staff and service users.
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