Vaccine Passports – Headache for employers

The government has recently introduced legislation mandating staff working in regulated care homes to have had both the jabs, unless they have a medical exemption.

The government’s latest working safety guidance instead focuses on increased ventilation and cleaning, together with ensuring that staff with Covid-19 symptoms or those required to self-isolate do not enter the workplace.

Although requiring employees to be fully vaccinated before they are allowed to return to the office may be seen as a positive step by staff who have already been double jabbed, it will inevitably require a discussion over vaccine status that, for a variety of reasons, some employees may not be comfortable to have. Yet, a recent survey reported that 24 per cent of business managers would only be prepared to work with colleagues who had been double jabbed.

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 a number of different types of discrimination claims.

Given the scope for discrimination claims to be brought should mandatory vaccination policies be introduced, employers will really benefit from analysing their workplaces and business operations to identify why this policy is necessary on top of the existing health and safety measures that the government recommends.

This exercise will be a vital tool in establishing the proportionate means of defence to a claim of discrimination, since employers would have to be able explain why the usual Covid secure measures, regular testing or homeworking – which could all have a less discriminatory impact – are not sufficient in achieving the health and safety legitimate aim.

Communication with employees will also be an important consideration prior to the introduction of a mandatory vaccination policy. Explaining why it is necessary to introduce the policy and giving staff the opportunity to provide their view 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.

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