The COVID-19 Secure Guidelines Working safely during coronavirus (COVID-19) – Guidance – GOV.UK (www.gov.uk) note that employers should be mindful of the particular needs of those with protected characteristics who are protected by discrimination law.
Employers are at risk of indirectly discriminating against employees with certain protected characteristics where they treat vaccinated staff differently from those unvaccinated.
Different treatment could include refusing unvaccinated staff entry to certain parts of the workplace, not allowing them to travel abroad for business, refusing them entry to certain roles or denying sick pay if they are off sick with COVID-19 symptoms.
As a priority for the vaccine is currently largely based on age, in the immediate future any differences in treatment between vaccinated and unvaccinated staff could be indirectly age discriminatory, unless the treatment could be objectively justified.
Pregnant women have been advised not to have the vaccine. Women trying for a baby may be unsure about taking it. Therefore, employers should ensure that there are suitable exceptions to any requirement to vaccinate, to avoid discriminating on this basis. This will be a tricky area to navigate, as many women choose not to tell their employer of their pregnancy until three months gestation or indeed that they are trying for a baby at all.
People of a certain religion or belief may not want to have it. The guidance states that COVID-19 vaccines are halal and therefore permissible from an Islamic perspective, but this does not cover all religions and beliefs.
Where an employee's refusal to be vaccinated is down to a protected characteristic and results in detrimental or disciplinary action, they may be able to issue a direct or indirect discrimination claim and claim constructive unfair dismissal if they resign in protest. Discrimination claims have no financial cap, therefore, if a claim is successful any damages award could be significant.
In many workplaces, a mandatory vaccination policy would need to be balanced against the possible infringement of Article 8 of the Human Rights Act 1998 – the right to respect for private and family life. A mandatory vaccination policy could be an invasion of an individual's privacy. This will be especially pertinent where there are less personally invasive ways of minimising the risk of transmission within the workplace such as good quality ventilation – which we are seeing more and more evidence of given that COVID-19 is an airborne virus.
Finally, there is a small risk of an employee having an adverse reaction to the vaccine for which the employer may be found to be liable so the employee could well pursue a personal injury claim against the employer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
