Since the rollout of the Covid-19 vaccine began, the debate has rumbled on as to whether employers can require employees to have the jab. The government recently took steps to introduce a legal requirement for care workers to be double vaccinated.
However, one controversial area is whether such policies could be enforced against all staff, including those who don’t wish to have a jab for reasons connected to a protected characteristic under the Equality Act 2010, such as religion or belief.
In an employment tribunal decision last year, ethical veganism – eating a plant-based diet and avoiding all forms of animal exploitation – was held to amount to a philosophical belief worthy of being defined as a protected characteristic.
While Covid-19 vaccines do not contain any animal products, all such vaccinations are required to have been tested on animals during their development. As such, on a strict interpretation, the jab – and many other medications – would be incompatible with ethical veganism meaning employers should proceed with caution when looking to implement policies.
Managing vaccine policies in the workplace
Several high-profile employers, including Facebook and Google, have announced they will require staff to be fully vaccinated before they return to the workplace. However, any employer who wants to introduce a requirement for their employees to have a Covid-19 vaccine will need to consider any objections from ethical vegans among their workforce and whether to make them exempt from any policies.
If they do not, a requirement for all staff to have received a vaccine is likely to amount to indirect discrimination against ethical vegans in the workplace, particularly if the policy has more of an impact on them than others. Therefore, an employer would need to be able to objectively justify their policy to insist on it for affected employees.
Employers need to tread carefully and give consideration as to whether they exempt ethical vegans from any blanket requirements. In particular, if they decide not to make an exception, they need to explain why alternative measures – such as requiring ethical vegans to undergo regular testing – would not have been sufficient to mitigate health and safety concerns.
It is worth bearing in mind that employers who refuse to hire, or dismiss, ethical vegans due to their vaccination status could face employment tribunal claims for discrimination or unfair dismissal. Successful claimants would receive compensation for their financial losses and injured feelings at the expense of the former employer – therefore, avoiding these circumstances is crucial.
Advice to employers
When it comes to the blanket ‘no jab, no job’ requirements, I would urge all employers to be wary. This is not just because of the risk of discriminating against certain groups, but also due to how controversial this could prove to be among employees.
As a first port of call, I would always advise that employers begin by encouraging employees to get vaccinated, while also providing access to accurate information about the vaccination programme, offering paid time off for appointments and assisting with travel arrangements where required.
Laura Kearsley is a partner and solicitor specialising in employment law at Nelsons