‘No jab no job’: could there be a claim for indirect discrimination?

In the wake of proposed compulsory vaccination policies for care home workers and consultation on extending this to NHS staff, we explore the legal ramifications of ‘no jab, no job’ policies. Here, we look at whether this could give rise to claims of indirect discrimination.

Broadly speaking, indirect discrimination occurs where a provision, criterion or practice is implemented which puts people with a protected characteristic at a particular disadvantage when compared to others who do not have that protected characteristic.

It is likely that the ‘no jab no job’ policies, would constitute a provision, criterion or practice for the purposes of establishing liability for indirect discrimination.

A ‘no jab no job’ policy could have far-reaching effects which would put people who share that characteristic at a particular disadvantage:

• Disability – some vaccines are not suitable for individuals with suppressed immune systems. An employee with certain allergies may also be advised against vaccination due to the risk of anaphylaxis.
• Sex – there is speculation in the media that the vaccine may impact a woman’s ability to conceive. A December 2020 survey of 55,000 people found that the group most likely to refuse vaccination were 18 to 34-year-old women, with many citing worries about fertility.
• Race – Research has found that some ethnic origins may be more likely than others to refuse the vaccine, the greater hesitancy in minority ethnic groups being due to low confidence in the vaccine, distrust, access barriers, inconvenience, socio-demographics and lack of communication from trusted providers.
• Religion or belief – some might refuse the vaccine to protect religious or moral objection to the vaccine. For example, gelatin derived from pigs is often used in mass-produced vaccines. Although there is no gelatin in the Covid-19 vaccines currently available, shark liver oil is being considered as an adjuvant for one of the new vaccines. Other employees may refuse the vaccine because embryonic tissue was used to test or develop the vaccine.

An employer may be able to justify a vaccination policy that is on the face of it discriminatory against a particular protected characteristic, if it can show that its policy can be objectively justified as a proportionate means of achieving a legitimate aim.

Employers are likely to be able to establish the legitimate aim element through a business efficacy argument for employees to return to the office. However, the proportionality element may be a more difficult hurdle. Compliance with the Covid-19 secure guidelines and introducing regular testing could be a less discriminatory means of achieving this legitimate aim.

This article was co-written by employment partner, Louise Attrup and employment legal assistant, Jenny Dodds.