Legal

Is mandating vaccines a breach of human rights?

11 Aug 2021 By Victoria Albon

In light of a recent European Court of Human Rights ruling, Victoria Albon looks at the risks employers face if they force staff to have the Covid jab

Eighteen months ago, UK-based HR professionals probably would not have thought a European Court of Human Rights (ECHR) decision concerning the implementation of a mandatory childhood vaccination programme in the Czech Republic would be particularly relevant to their work. 

However, against the current backdrop, some employers have been considering whether they might be able to mandate vaccination of staff against Covid-19. For that reason, the recent ECHR judgment in Vavřička and others v Czech Republic [2021] ECHR 116 has attracted attention. Might it be possible for an employer to require that employees be vaccinated without breaching the European Convention on Human Rights (ECHR)? 

Background

The Czech Republic introduced a compulsory vaccination programme requiring children to be vaccinated against nine diseases. Financial penalties were imposed for non-compliance, and children who had not been vaccinated were excluded from pre-school. 

After being penalised for non-compliance with the policy, six individuals alleged that the mandatory programme was a breach of the ECHR. In particular, they argued that it was a breach of Article 8 – right to a private life, and of Article 9 – right to freedom of thought, conscience and religion.

Decision

The ECHR found that the Czech national vaccination programme did interfere with the claimants' rights to a private life. However, on the facts, it decided that the interference was justified as a proportionate means of achieving a legitimate aim. In particular, it held that:

The Czech Republic had a legitimate aim in its desire to protect its population against serious disease.

In the circumstances, the relevant vaccinations were known to be safe and effective.

The vaccination policy was proportional – the fines were not excessive and non-vaccinated children were not prevented from attending an educational setting once they reached the compulsory school age.

For their Article 9 claim, the claimants relied on freedom of thought or conscience rather than religion. In the circumstances, the ECHR found that the claimants' beliefs lacked sufficient cogency to be protected under Article 9.

Implications

It is clear from this case that it might be possible for an employer to require that employees be vaccinated against coronavirus without contravening the ECHR. However, the decision was highly fact-specific, concerning tried and tested vaccinations against long-standing diseases – a very different situation to that which we currently have with Covid-19. 

The ECHR decision does not give the green light for national governments to make Covid vaccinations compulsory, or for employers to make vaccination a condition of employment. 

While those steps may be possible, there are many factors that employers will need to take into account before deciding whether to mandate vaccination as a condition of employment. These will include consideration of alternatives to a mandatory vaccination requirement (for example, testing, or home working, or a policy of encouraging vaccination rather than mandating it). Consideration will also need to be given to individual circumstances to limit the risk of unfair dismissal or discrimination claims arising. 

The ECHR only imposes direct obligations on public authorities (and so not on private sector employers). However, employment tribunals are obliged to interpret the law in a way that is consistent with the ECHR, and so private sector employers will still need to be careful to avoid any action which might contravene those rights.

Victoria Albon is a senior associate at Dentons

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