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. We find out more from an employment law specialist.
Since the implementation of the Covid-19 vaccine rollout, the debate has rumbled on as to whether employers can require employees to have the jab – with steps recently being taken 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, such as religion or belief, which are protected from discrimination under the Equality Act 2010.
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 don’t 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.
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. Are they exempt from those policies?
“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,” says Laura.
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 mitigating health and safety concerns.
“It’s 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.
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,” Laura adds.
“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.”
What the law says about mandatory vaccination requirements
The Government does have the power under the Public Health (Control of Disease) Act 1984 to make regulations to “prevent, protect against, control or provide a public health response to, the incidence or spread of infection or contamination”, but such regulations cannot require someone to undergo mandatory medical treatment. Without new primary legislation, the Government cannot force UK nationals to have the vaccination.
“The longer answer is that to force an employee to have a vaccination without consent could expose the employer to criminal charges of assault and battery,” warns Desley Sherwin, senior associate at Roythornes Solicitors.
Employers must be mindful that in additon to ethical veganism, some staff may suffer from severe allergies or have immune system disorders, meaning they cannot be vaccinated. Forcing such employees and other staff to have the vaccine might expose the employer to the risk of a civil claim for compensation over personal injury, should the employee suffer an adverse reaction.
“From an employment law stance, mandatory vaccination requirements could lead to claims of fundamental breach of contract by existing staff, leading to the employee resigning and bringing a constructive unfair dismissal claim to a tribunal. Although, in theory, this requirement could be introduced into the contracts of new recruits, other concerns discussed will still apply,” Desley explains. “Claims may be raised of indirect or direct discrimination, where younger people who are waiting in line for the vaccination are prevented from attending work or taking up new roles through no fault of their own.”
“Mandatory vaccination may also breach human rights law (in relation to the Article 8 right to a private and family life).”
Considering the complexity of this topic, employers may have a lot more to gain by planning ahead and doing extensive research, starting with speaking with their staff.