Legal

What vaccine passports may mean for employers

26 Aug 2021 By Nick Le Riche

Nick Le Riche examines the benefits and legal pitfalls of businesses implementing a mandatory vaccine policy for staff returning to the workplace

Google, Facebook and Microsoft all hit the headlines in recent weeks after announcing that staff must be fully vaccinated before they would be allowed to return to their respective US offices. Subsequently, Dominic Raab, UK foreign secretary, made a comment stating that mandating jabs was a ‘smart policy’ for companies, while Pimlico Plumbers confirmed it will spend around £1m rolling out vaccinations for its staff.

For employers thinking about their back to the office arrangements, making double vaccinations or the use of a valid NHS Covid-19 pass a compulsory requirement could be an attractive additional safety measure. In fact, a recent survey by the British Chambers of Commerce found that almost a third of employers were considering such steps. Introducing such a policy, however, raises a number of employee relations and equality issues.

Current guidance

The government has recently introduced legislation mandating staff working in regulated care homes to have had both the jabs, unless they have a medical exemption. Aside from Raab’s comments, however, the government has so far not recommended that employers consider the use of the NHS Pass or compulsory vaccinations more widely. 

The government’s latest working safety guidance instead focuses on increased ventilation and cleaning, together with ensuring that staff with Covid-19 symptoms or those required to self-isolate do not enter the workplace. 

Although requiring employees to be fully vaccinated before they are allowed to return to the office may be seen as a positive step by staff who have already been double jabbed, it will inevitably require a discussion over vaccine status that, for a variety of reasons, some employees may not be comfortable to have. Yet, a recent survey reported that 24 per cent of business managers would only be prepared to work with colleagues who had been double jabbed.

There may be a number of reasons why staff may not have been vaccinated, and introducing a blanket ban on a return to the office for these individuals raises the risk of a number of different types of discrimination claims. 

Discrimination issues

The key discrimination issues here include the following:

  • Age – the number of employees who have not been able to receive a double vaccination due to their age is steadily decreasing, but a vaccination requirement still has the potential to disadvantage younger employees.
  • Pregnancy – government guidance has recently changed to recommending that pregnant women should be vaccinated. Given this is a reversal of the previous advice to pregnant women, employees may not yet have had an opportunity to receive both vaccinations.
  • Disability – some employees may have particular medical conditions which mean certain vaccines are not suitable for them and therefore may not be able to get the jab.
  • Religion or belief – employees may have refused to be vaccinated because of religious or philosophical beliefs. 
There will be scope for employers to justify a mandatory vaccination policy as being a proportionate means of achieving a legitimate aim. While it will be relatively straightforward for employers to identify workplace safety as the legitimate aim, showing that the policy is proportionate may need careful consideration. 

Practical steps

Given the scope for discrimination claims to be brought should mandatory vaccination policies be introduced, employers will really benefit from analysing their workplaces and business operations to identify why this policy is necessary on top of the existing health and safety measures that the government recommends. 

This exercise will be a vital tool in establishing the proportionate means of defence to a claim of discrimination, since employers would have to be able explain why the usual Covid secure measures, regular testing or homeworking – which could all have a less discriminatory impact – are not sufficient in achieving the health and safety legitimate aim.

Communication with employees will also be an important consideration prior to the introduction of a mandatory vaccination policy. Explaining why it is necessary to introduce the policy and giving staff the opportunity to provide their view is consistent with employers’ on-going duty to consult on Covid-19 health and safety measures, and may enable potential issues to be resolved before the new arrangements are introduced.

Nick Le Riche is a partner at BDB Pitmans LLP

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