Nicholas Le Riche, Partner at law firm BDB Pitmans, outlines the potential discrimination claims that could arise if employers ban unvaccinated staff from returning to the office.

As considerations are given to returning to the office after the summer break, every day seems to bring a new headline about a large employer planning on requiring its staff to be fully vaccinated against COVID-19 before they set foot back in their offices.

In the US, this has been announced by Google, Facebook, Microsoft, and Netflix. In the UK, Pimlico Plumbers has confirmed that it will be spending around £1m rolling out mandatory vaccinations for its staff. While recent surveys have indicated that such policies may have some support from both employers and employees, requiring compulsory vaccinations for staff raises significant diversity and inclusion issues.

Discrimination

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 many different types of discrimination claims. The main claims here would include:

• Age – the numbers 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 but given the previous advice pregnant employees may not yet have had an opportunity to receive both vaccinations.
  
• Disability – some employees may have particular medical conditions which mean that certain vaccines are not suitable for them and they therefore do not feel able to be vaccinated.
  
• 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 take careful consideration.

Practical pointers

If an employer believes that their organisation requires staff to be fully vaccinated or to show the NHS COVID-19 passport before they return to the workplace, what are the most important points they should keep in mind when implementing this policy to ensure that it is done in an inclusive way?

• Business case – employers should carefully analyse their workplaces and business operations in order to draw up a business case that identifies why this policy is necessary on top of the existing health and safety measures that the government recommends, such as increased ventilation and cleaning. This exercise will be a vital tool in establishing the proportionate means defence to a claim of discrimination, since employers would have to be able explain why the usual COVID-19 secure measures, regular testing or homeworking -which could all have a less discriminatory impact- are not sufficient.
  
• Communication – once the business case has been prepared, employers should be prepared to discuss this with employees and their representatives to get their feedback. Explaining why it is necessary to introduce the policy and giving staff the opportunity to provide their views 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.
  
• Consequences – employers should think through the consequences if employees are not allowed back in the office because they have not been fully vaccinated. Will they be able to work from home and, if not, how will their absence be treated? Decisions here should be consistent with the employer’s existing policies such as disciplinary, grievance and sickness absence.
  
• No snap judgements – employers should listen to concerns of staff who do want to be vaccinated and should not rush to impose sanctions immediately. Concerns should be dealt with sensitively and particular personal situations taken into account with discussions kept confidential.
  
• Consistency – issues with employee relations frequently arise where employees feel they are being treated differently to their colleagues and therefore it is vital, especially where the existence of the policy itself is a contentious matter, for a vaccination policy to be applied consistently across the workforce. Failure to do so not only causes resentment amongst staff but greatly increases the chances of discrimination claims being brought against the employer.

Introducing a vaccination policy will require careful consideration. Ensuring that diversity and inclusion issues form an integral part of this process, however, will increase the prospect of the policy being positively received by employees and reduce the risk of employers being subject to discrimination claims in the future.

Nicholas Le Riche is a Partner at BDB Pitmans.