COVID-19 vaccination: what are the potential discrimination issues?

Employers have a duty, so far as is reasonably practicable, to ensure the health, safety and welfare of those working for them, as well as those who physically interact with the business. As a result, some organisations are considering introducing a mandatory COVID-19 vaccination policy, and/or making offers of employment conditional on applicants having been vaccinated.

The Equality and Human Rights Commission has, however, recently been quoted as saying that, "a blanket policy requiring workers to be vaccinated, applied inflexibly, is likely to be unlawful." So, what are the potential discrimination issues?

What discrimination issues might arise with mandatory vaccination?

Having a 'one size fits all' vaccination policy, applied inflexibly, which results in workers being dismissed or treated less favourably (reduced pay; not being allowed to attend the workplace) if they have not been vaccinated, could put individuals with a protected characteristic at a particular disadvantage. There is, therefore, the risk of discrimination claims unless you can justify your approach as being a proportionate means of achieving a legitimate aim (such as protecting the health and safety of staff and others).

Whether mandatory vaccination is proportionate will depend on factors such as how you operate the policy in practice; the impact on individual workers; and whether there are less intrusive ways of reducing risk:

Can other steps be taken to make the workplace COVID-19 secure (social distancing, screens, ventilation)?
Can the employee work from home?
Can the employee be re-deployed into a role for which other COVID-19 steps would be sufficient and vaccination not required/justified?
Will regular testing offer adequate protection?

Making an offer of employment conditional on vaccination would also carry a discrimination risk, as job applicants are protected against discrimination. The same type of considerations as noted above would apply.

Which are the relevant protected characteristics?

A vaccination requirement, which doesn't allow for exceptions, could put employees with any of the following protected characteristics at a particular disadvantage:

Age: As a result of the way in which the vaccine is being rolled out, older employees are more likely to have been vaccinated. Also, younger employees may be more hesitant about getting the vaccine on the basis that (i) the risks from COVID-19 for them are lower; and (ii) the risk of blood clotting after vaccination is seen slightly more often in younger people.

Disability: Employees with particular medical conditions might be advised, or choose, not to get the vaccine (e.g. those with suppressed immune systems). If their condition amounts to a disability under the Equality Act 2010, pressure to get the vaccine could lead to a disability discrimination claim.

Pregnancy or maternity: Previous government advice was that pregnant women should not be vaccinated; however, it now says that they should be offered COVID-19 vaccines at the same time as people of the same age or risk group. Pfizer and Moderna vaccines are the preferred vaccines for pregnant women coming for their first dose. The NHS suggests that individuals who are pregnant should speak to a healthcare professional before they have the vaccination to consider the benefits and risks. The vaccine can be received whilst breastfeeding (read more here and here).

Race: Research by SAGE published in December 2020 showed marked differences between ethnic groups in willingness to receive the COVID-19 vaccine: black ethnic groups were most likely to be hesitant, followed by those of Pakistani or Bangladeshi ethnic origin. The greater hesitancy in minority ethnic groups was due to low confidence in the vaccine, distrust, access barriers, inconvenience, socio-demographics and lack of communication from trusted providers.

Religion or belief: People with strongly held views against vaccination might argue that they are protected as having a philosophical belief. Whether they are is so far untested and will depend on the individual facts and circumstances. To be protected a belief must:

be genuinely held;
not just be an opinion or a viewpoint;
relate to a weighty and substantial aspect of human life and behaviour;
attain a certain level of cogency, seriousness, cohesion and importance;
be worthy of respect in a democratic society, not be incompatible with human dignity, nor conflict with the fundamental rights of others; and
have a similar status or cogency to a religious belief.

Some employees might object to the vaccine because of what it contains, or how it was produced. Muslim, Hindu, or vegan employees might refuse vaccination because gelatine derived from pigs is often used in mass-produced vaccines. However, the NHS website states that the approved COVID-19 vaccines don't contain any animal products or eggs. Other employees might have concerns if embryonic tissue was used to test or develop the vaccine; or because shark liver oil could potentially be used as an adjuvant (a chemical used to improve the immune response) for one of the new vaccines. For further information on the content and processing of the vaccines read this guidance.

Sex: Women may refuse to be vaccinated because they are trying to conceive. A December 2020 survey of 55,000 people found that the group most likely to refuse vaccination were 18 to 34-year-old women, often due to concerns about a lack of information about the effects on fertility. The NHS advice is, however, that there's no evidence that the vaccine has any effect on the chances of becoming pregnant.

More information

Whether to introduce a vaccination policy will be a decision for each business to take based on a risk assessment. The discrimination risks need to be considered as part of the overall picture, along with your health and safety and data protection obligations and, if an employee's job is conditional on being vaccinated, the unfair dismissal risks.

Also, bear in mind that (i) your duty to consult on health and safety matters covers any measures introduced to manage COVID-19 risks; and (ii) a vaccination policy is just one way to try to manage COVID-19 risks in the workplace and, therefore, should be considered alongside other appropriate measures such as social distancing, hygiene procedures and ventilation.

Read more in our earlier blogs here and here.