David Sheppard, from our employment team, discusses the future of COVID-19 vaccine passports and the potential for litigation arguments from indirect discrimination to unfair dismissal.
Currently, in the UK, being fully vaccinated is only mandated by law for visitors and employees at care homes in England – this requirement begins on 11 November 2021, meaning care workers must get their first jab by 16 September at the latest.
The UK Government has made clear indications that the requirement to be fully vaccinated as a condition of entering certain premises or accessing services could be expanded in England. However, as current coronavirus public health regulations are devolved powers, it remains to be seen if the governments in Scotland, Wales, and Northern Ireland will follow suit.
In addition to any specific legal obligations to ensure visitors and employees are fully vaccinated, some employers may also introduce their own vaccine passport policies to comply with their own health and safety obligations, particularly in working settings with high risks of COVID transmission, which are not effectively controlled by other COVID-19 safety measures.
However, vaccination policies, or so-called “no jab no job” rules, could lead to potential litigation including, but not limited to, the following claims:
The grounds of an indirect discrimination claim would be that a vaccine passport policy puts the individual and persons sharing their protected characteristic at a particular disadvantage, such as age, sex, pregnancy, disability, or religious/philosophical belief.
Indirect discrimination can be lawful if the policy is a proportionate means of achieving a legitimate aim. And although the protection of health and safety is no doubt a legitimate aim, proportionality is key. A vaccination policy is more likely to be proportionate for workplaces with the highest risks of COVID-19 transmission, which cannot be effectively mitigated by alternative measures, such as regular testing, or in workplaces where vaccination is legally compulsory, such as care homes.
If an employer is looking to ask about their employees’ vaccination status and subsequently store this information, this would fall under the bracket of the processing of personal data for the purposes of the GDPR.
Employers may attempt to raise the legitimate reason for undertaking a risk assessment to ensure the COVID security of the workplace, however, employers should be wary of trying to raise this as a legitimate reason. Why? All workplaces have already been placed under a legal obligation to make their workspaces COVID-19 secure under a pre-existing legal duty of care and various health and safety guidance issued in light of the pandemic. Again, employers must demonstrate there was a proportionate need to retain and process employees’ vaccination data, and this information was necessary even though existing safety measures are in place. We anticipate that only those employers who have a legitimate and proportionate need for a vaccination policy would, in turn, have a proportionate basis on which to collate vaccine data.
The considerations are different where an employer is looking to visually check evidence of vaccination upon their employees’ entry into the workplace each time. This checking would fall outside of the ambit of the GDPR, and there would be no need to consider the risks associated with finding a legitimate reason. However, it is stressed that this is limited to visual checks; any digital checks (using a QR Code), and storage electronically of this data which for identifiable employees, would fall under the bracket of data processing and would be subject to GDPR.
Another consideration for employers when looking to implement a vaccine passport policy is, if an employer dismisses the employee because of their non-compliance with the policy, or if the employee decides to leave the workplace because they do not want to comply, this triggers a claim for unfair dismissal.
Only employees with 2 or more years’ service can generally bring unfair dismissal claims. Any such dismissal would be fair if the employer can show that it was an objectively reasonable response to dismiss the employee based on their non-compliance with a vaccination policy. However, in absence of any case law on the matter, it is likely it will be difficult to establish a fair dismissal on these grounds, and dismissal would be regarded as an appropriate last resort for the highest risk workplaces, or where vaccines are mandatory by law, and measures short of dismissal such as implementing other COVID-safety measures, education, support, encouragement, incentivization, and social distancing, all fail.
Considering the above, our current understanding is that the most appropriate course of action for employers is encouragement and support initially. Employers can take steps such as providing information on the importance of vaccines and supporting staff with paid time off to receive and recover from their vaccines, to encourage as many employees as possible to get vaccinated, whilst limiting the risks of employee backlash and litigation.