Although the UK Government has not legislated mandatory vaccinations in the workplace (apart from in care homes) some organisations are still considering introducing a mandatory COVID-19 vaccination policy, and/or a ‘no jab, no job’ contractual requirement.
The Equality and Human Rights Commission (EHRC) has, however, commented that, “a blanket policy requiring workers to be vaccinated, applied inflexibly, is likely to be unlawful.” So, could mandatory vaccination be a breach of the human rights act or be considered discrimination on grounds of philosophical belief?
Across the pond, the American press reported that a group of female soccer students from Western Michigan University (WMU) were attempting to sue their University for violating their Christian beliefs with its vaccine mandate. They claimed WMU violated their First Amendment rights since they’d be kicked off the team if they weren’t fully vaccinated by August 31, no exception!
But have you any idea what law or laws they might be citing if this was happening in the UK?
Before we explore this, here is an interesting fact…
A Forbes article suggests that 44% of staff in the US would resign if forced to get a vaccine. On the other side of the coin, 38% of workers would consider resigning if vaccinations were not mandated!
Is mandatory vaccination a breach of the Human Rights Act?
Despite what many employees, managers and leaders in the UK think, it’s unlikely to be a breach of Human Rights and here’s why:
The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. It came into force in the UK in October 2000.
The Act sets our human rights in a series of ‘Articles’. Each Article deals with a different right, e.g. Article 2: Right to life, Article 9: Freedom of thought, belief and religion and so on. These are taken from the ECHR and are commonly known as ‘the Convention Rights’.
However, whilst Public Bodies must respect your rights – this does not apply to private bodies e.g. ltd companies and PLC’s.
It requires all public bodies (like courts, police, local authorities, hospitals and publicly funded schools) and other bodies carrying out public functions to respect and protect your human rights.
Whilst individuals can only claim human rights breaches against a public authority, human rights law has been incorporated into general employment law (for example, we have the Equality Act of 2010 that prohibits discrimination on grounds of race, gender, sexuality…). This applies to all employers.
What does The Equality Act say?
The Equality Act 2010 legally protects employees from discrimination on nine grounds including pregnancy and maternity, age, disability and religion or belief
Whilst most of us could probably understand and be able to define the majority of these nine protected characteristics, one characteristic that is generally least understood is that of ‘belief’.
The test to establish a philosophical belief stems from the case of Grainger Plc v Nicholson, which concluded that the belief must be:
- genuinely held
- not a mere opinion or viewpoint based on the present state of information available
- a substantial aspect of human life and behaviour
- serious, cohesive and with a similar status to a religious belief
- worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others
In this case Mr Nicholson’s philosophical belief (in catastrophic climate change) affected most aspects of his life, including how he travelled, what he bought and ate, and how he disposed of his waste, and it was for this reason that he had been discriminated against and selected for redundancy.
More recently in January 2020, an Employment Tribunal in England ruled that ethical veganism qualified as a philosophical belief and therefore a protected characteristic under the Equality Act 2010.
Managing a refusal to a mandated vaccine
Given this definition of ‘belief’ it may be that some employees who refuse a vaccine will in due course claim discrimination on grounds of belief, providing they can show it was not an arbitrary ‘no’, but one that has been thought through and aligns with their clear beliefs.
Clearly if there is no ‘philosophical belief’ put forward, employers will be able to much more easily dismiss an employee refusing the vaccination.
However, aside from belief, be wary of issues raised by employees where a refusal to be vaccinated relates to a health condition (disability), pregnancy/maternity or even age.
Direct or indirect discrimination?
An example of potential direct discrimination might be: Introducing a vaccine mandate and then the dismissal of an employee who refuses to be vaccinated on health grounds (relating to a disability).
A few examples of indirect discrimination: Company memo: ‘Only staff who have been vaccinated can attend the office. All others must agree to a permanent remote working arrangement.’ Any employees who are not willing or able to get a vaccine e.g. on grounds of a specific medical condition might be able to claim indirect discrimination in this instance. Equally a woman might claim pregnancy discrimination on grounds that more pregnant women that other staff would be adversely affected by this mandate to be vaccinated or be forced to remote work.
Vaccines and data protection
The public have been vocal in recent weeks demanding the publication of the names of those in the Strictly Come Dancing line up who have not been vaccinated. This of course raises the issue of another relevant piece of legislation here: Data Protection.
Just as a reminder: health information, including vaccination records and COVID test results are classed as sensitive data and as such, the highest standards around protecting that data are required. No employer can therefore release such information, whatever the clamour or outrage from others, without specific permission from the employee or a legal obligation.
It’s complicated, messy and there is a lot of ‘let’s see who gets sued first’. Please don’t let it be you who gets sued, as this is a time for us all to focus on our businesses and organisations to make them robust and fit for purpose in this changing world. No unnecessary legal distractions needed!
Our advice to you therefore is: be careful and consider what communications you release. We also advise you to encourage your managers to properly listen to individual concerns and get advice before making decisions around suspensions, dismissals, forced contract changes etc. No harm in a quick reminder for your HR team and key managers too about protecting sensitive data.
Thanks for reading and we look forward to hearing from you!
At Jaluch we can support with:
- eLearning on data breaches (or GDPR generally).
- Online live training – on data protection and managing sensitive data.
- Online live learning (and face to face) on managing remote staff.
- Online live learning – developing listening skills and managing sensitive discussions (for managers).
- Staff (employee) representative training to ensure your consultative group can work positively with you to bring in new ways of working in these changing times.
- Training for managers – essential employment law including contracts, performance management, recruitment and dismissals.
- Management Development Programmes for line managers and junior leaders.
Support and Advice
- Subject access requests (DSARs) if you don’t have the inhouse resource to respond to these.
- Grievances, disciplinaries and tribunal claims – investigations, chairing and ongoing support.
- If you fancy a bit of DIY, check out Docs Wizard for a suite of template letters and policies (annual affordable membership).