Could ‘No Jab No Job’ Policies Be Discriminatory?

The passing of The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which prohibit Care Quality Commission (CQC) registered care homes from allowing certain categories of person(s) to enter their premises unless they have completed a recognised course of vaccination against COVID-19 (unless clinically exempt), has led to many employers across various sectors considering their position in relation to compulsory vaccinations.

The strong advice from the Government is that vaccination against COVID-19 is vital in protecting individuals and those around them from contracting COVID-19, by significantly reducing the severity of the symptoms suffered by those who are vaccinated and reducing the likelihood of transmission to others. As a result, many employers are wanting their employees to get vaccinated in order to protect their workforce and reduce absences, in turn helping to maintain staffing levels and ensure continuity of business operations so far as is possible.

From a practical point of view, we advise employers to encourage employees to get vaccinated by ensuring access to reliable information about the vaccine and to allow employees paid time off to attend vaccination appointments. However, employers (including those operating in the care sector) cannot compel employees to be vaccinated against their will and need to understand that some employees may be more hesitant about getting the vaccine and/or refuse to get that.

In these situations, it is important that employers maintain an open dialogue with hesitant or reluctant employees and seek to explore their reasons for feeling a certain way about being vaccinated. Employers should then properly consider an employee’s reasons for refusing to be vaccinated prior to making any decisions in respect of their continued employment.

In particular, it has been widely reported that individuals in Black, Asian and Minority Ethnic (BAME) communities have been more hesitant in accepting the vaccine and are more likely to go on to refuse that. This could give rise to plausible discrimination claims being brought against employers by employees from BAME communities who are subjected to a disadvantage as a result of not being vaccinated.

The law and indirect discrimination claims

Under the Equality Act 2010, employees are protected against discrimination and other prohibited conduct on grounds of certain protected characteristics. Race is one of those protected characteristics and includes colour, nationality, ethnic and national origins.

The most likely type of race discrimination claim to arise in the context of COVID-19 vaccinations is an indirect discrimination claim. Briefly, indirect discrimination occurs where an employer applies (or would apply) a provision, criterion or practice (PCP) that puts (or would put) employees with a certain protected characteristic at a particular disadvantage, compared with employees who do not have that protected characteristic.

For example, if an employer implements a policy of requiring its staff to be vaccinated and a person from the BAME community refuses that and is then not allowed to attend work or is subsequently dismissed, there is an argument that the practice of compulsory vaccination was indirect discrimination on the basis it put that person at a particular disadvantage due to their race.

Given that research suggests BAME communities are less likely to be vaccinated, this is a real risk that employers need to be alive and sensitive to. Whilst it is possible for employers to ‘justify’ indirect discrimination by showing that a PCP is a proportionate means of achieving a legitimate aim (i.e. to ensure the health and safety of its workforce and continuity of business operations), that defence may not succeed in light of the alternative measures available to employers to take to reduce the risk and transmission of COVID-19 in the workplace without the need for compulsory vaccination. For example, requiring employees to test themselves for COVID-19 before attending the workplace, increasing on-site cleaning, maintaining social distancing and providing handwashing facilities. It is arguable that those alternatives could be sufficient means of achieving any legitimate aim relied upon by employers in these circumstances.

Of course, the likely prospects of any claim for indirect discrimination succeeding on these grounds will depend on the individual circumstances of the case and the reasons why the employer is requiring compulsory vaccination. For example, in care home settings from 11th November 2021 when The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 come into force, compulsory vaccination and any indirect discrimination flowing from that are very likely to be justified in light of that legislation and the fact it will be unlawful for employers to allow an employee to continue working in their position if that requires entry into a care home and they are either not vaccinated or clinically exempt from getting vaccinated.

Comment

Employers seeking to implement a policy of compulsory vaccination need to be mindful of the risks associated with that and we would recommend that employers seek advice at the earliest opportunity in the event that employees communicate any hesitancy or reluctance to get vaccinated. Employees enjoy protection from discrimination and other prohibited conduct from day one of their employment and the potential compensation available to employees who successfully bring claims under the Equality Act is uncapped.

Whilst this blog focuses on claims for race discrimination, not least because of the surge we have seen in the number of those claims being presented, the Equality Act offers protection in respect of a number of other protected characteristics that could result in other discrimination claims arising from compulsory vaccination.