COVID Status Certificates
The government is currently consulting about the introduction of “COVID status certificates” colloquially referred to as “COVID passports” for international travel and attendance at mass events such festivals and sporting events.
The Equality & Human Rights commission (EHRC) has warned however that this is likely to lead to a “two-tier society” and it is likely to be unlawful indirect discrimination in relation to those who have a protected characteristic such as age (at least until the vaccination is offered to everyone), disability, pregnancy, religion and philosophical belief to introduce COVID status certificates; unless it can be shown that they are objectively justified.
The EHRC has also warned against the recruitment policy advocated by Pimlico Plumbers and Barchester Care Homes of “no jab, no job” until at least everyone has been offered the vaccination. It said that plans to make the job mandatory for care workers may also be unlawful on the grounds of discrimination.
Indirect Discrimination
Indirect Discrimination is where an employer applies a provision, criterion or practice (i.e. the requirement to have had a COVID vaccination) to an employee who has a protected characteristic and that requirement puts that employee at a particular disadvantage (i.e. he is not appointed to a job); which when applied to someone without that protected characteristic does not have the same disadvantage (i.e. he would be appointed to the job if he had had the vaccination).
In the context of COVID vaccinations the relevant protected characteristics are likely to be as follows:
- Age – because older people are being offered the vaccine first (precluding younger workers until the vaccination is rolled out across all age groups);
- Disability – workers with disabilities may not be able to the vaccination on medical advice;
- Pregnancy – the vaccine is not recommended for those who are pregnant, breastfeeding or who intend to fall pregnant within the next 2 months;
- Religion – if a worker’s religious belief prevents them from having the vaccine; and
- Philosophical Belief – time will tell whether an anti-vaccination belief will be a protected characteristic in discrimination law; but if it is “genuinely held, cogent, serious and applies to an important aspect of human life or behaviour” it is at least capable of protection in the same way as ethical veganism has been shown to be a philosophical belief.
In theory the requirement to have the vaccine may be lawful if the employer can show that it was objectively justified; however, the threshold for that is likely to be very high especially given that at present the government has not mandated care workers or NHS staff to have the vaccine.
The EHRC says if COVID status certificates are brought in; it should be for a limited time only and be subject to regular review and strict parliamentary scrutiny.
Lateral Flow Testing in the Workplace
Similar considerations might apply if the employer decides to introduce lateral flow testing in the workplace particularly in relation to the protected characteristics of disability, religion and philosophical belief and the invasive nature of the test. Nevertheless, it isn’t advisable to make attendance in the workplace and testing mandatory in circumstances where there are alternatives such as working from home or furlough particularly given that the government has not mandated testing in the workplace to date. Where there are no alternatives to working in the workplace, it may be a reasonable instruction to ask an employee to undergo a lateral flow test and it is may amount to objective justification to insist an employee takes a test in order to help protect the health and safety of the workforce and public at large.
It is more important than ever that employers introduce robust policies if they intend to introduce lateral flow testing in the workplace. Do get in touch if this is something we can help you with.
Sally Lomas Fletcher, Associate Solicitor, Employment
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