The Equality Commission has published guidance to help employers (and separate guidance, which we have now considered below, for service providers) to assess the potential discrimination implications of having a ‘no jab, no job’ policy.

This Guide can be added to the Labour Relations Agency more general Guidance on Managing Vaccination Issues in the Workplace and ICO Guidance that can be accessed HERE

Guide

The 9 page Guide is divided into the following sections:

• May employers lawfully introduce such policies?
• Guidance Summary
• What should employers do?
• Context for this Guidance
• Are such discretionary employment policies lawful?
• Anti-discrimination law:
  • Disability discrimination and the reasonable adjustment duty
  • Discrimination against pregnant women

• Indirect discrimination – which protected grounds may be relevant?
  • Sex (it notes that pregnant women are hesitant about being vaccinated)
  • Age (it states that there is greater vaccine hesitancy amongst people in the under-30 age group)
  • Religious belief (Based on GB data it says that the Islamic faith appear more hesitant to be vaccinated than people of the Christian faith)
  • Race (Statistics show Black or Black British people were more likely to be vaccine hesitant than White people)
  • Political opinion and/or philosophical belief (Interestingly it finds that this may be difficult to establish unless vaccine hesitancy amounts to a philosophical belief which it acknowledges is a high hurdle to establish)

• Indirect discrimination – the justification defence including what is “Legitimate aims’ and showing a “Proportionate means of achieving those aims”
• Sunset clauses – the need for fading a clause out when the policy is no longer needed.
• Implementing a “no jab, no job” policy – other consequences

 

The Guide provides 3 scenarios to try and illustrate when a policy would and would not be justified. One of the scenarios says:

“Employer C may be in a hybrid situation. They can readily allow some staff (their office-based ones) to work from home. They also have a second group of staff who need to work on the premises but not in close physical contact with other people and for whom social distancing protocols and precautions are in place and can easily be maintained. However, they also have a third category of staff who must work on the premises and in close physical contact with customers. If the declared aim is to protect people’s health, then employer C is likely to be in a much better position to justify a “no jab, no job” policy for the third group of employees than for the other two groups. Indeed, employer C may find that such a policy is not justifiable in the case of their (usually) office-based workers at all. If it is justifiable in the case of the third group (the close physical contact workers), that does not necessarily mean it will be so for the second group. The answer there may depend on how close and how frequent the second group of workers come into close contact with the third group and whether other precautions can be put in place to reduce the risk of infection between them.”