No Jab, No Job” – Human Rights Issue or Discrimination on grounds of Philosophical Belief?
I recently came across this paper which sums up where we are now. Like everything else the way forward is unclear a lot will depend on how tribunals interpret the equality act or if the government forces the issue as it has with care homes and is currently considering the same measures for NHS staff
Is mandatory vaccination a breach of the Human Rights Act?
Despite what many employees, managers and leaders in the UK think, it’s unlikely to be a breach of Human Rights and here’s why:
The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. It came into force in the UK in October 2000.EHCR has nothing to do with the EU and therefore Brexit has not affected it.
The Act sets our human rights in a series of ‘Articles’. Each Article deals with a different right, e.g. Article 2: Right to life, Article 9: Freedom of thought, belief and religion and so on. These are taken from the ECHR and are commonly known as ‘the Convention Rights’.
However, whilst Public Bodies must respect your rights – this does not apply to private bodies e.g. ltd companies and PLC’s.
It requires all public bodies (like courts, police, local authorities, hospitals and publicly funded schools) and other bodies carrying out public functions to respect and protect your human rights.
Whilst individuals can only claim human rights breaches against a public authority, human rights law has been incorporated into general employment law (for example, we have the Equality Act of 2010 that prohibits discrimination on grounds of race, gender, sexuality…). This applies to all employers.
What does The Equality Act say?
The Equality Act 2010 legally protects employees from discrimination on nine grounds including pregnancy and maternity, age, disability and religion or belief
Whilst most of us could probably understand and be able to define the majority of these nine protected characteristics, one characteristic that is generally least understood is that of ‘belief’.
The test to establish a philosophical belief stems from the case of Grainger Plc v Nicholson, which concluded that the belief must be:
- genuinely held
- not a mere opinion or viewpoint based on the present state of information available
- a substantial aspect of human life and behaviour
- serious, cohesive and with a similar status to a religious belief
- worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others
In this case Mr Nicholson’s philosophical belief (in catastrophic climate change) affected most aspects of his life, including how he travelled, what he bought and ate, and how he disposed of his waste, and it was for this reason that he had been discriminated against and selected for redundancy.
More recently in January 2020, an Employment Tribunal in England ruled that ethical veganism qualified as a philosophical belief and therefore a protected characteristic under the Equality Act 2010.
Managing a refusal to a mandated vaccine
Given this definition of ‘belief’ it may be that some employees who refuse a vaccine will in due course claim discrimination on grounds of belief, providing they can show it was not an arbitrary ‘no’, but one that has been thought through and aligns with their clear beliefs.
Clearly if there is no ‘philosophical belief’ put forward, employers will be able to much more easily dismiss an employee refusing the vaccination on the grounds of conduct-failure to obey a lawful management instruction.
However, aside from belief, be wary of issues raised by employees where a refusal to be vaccinated relates to a health condition (disability), pregnancy/maternity or even age.
Direct or indirect discrimination?
An example of potential direct
A few examples of indirect discrimination: Company memo: ‘Only staff who have been vaccinated can attend the office. All others must agree to a permanent remote working arrangement.’ Any employees who are not willing or able to get a vaccine e.g. on grounds of a specific medical condition might be able to claim indirect discrimination in this instance. Equally a woman might claim pregnancy discrimination on grounds that more pregnant women than other staff would be adversely affected by this mandate to be vaccinated or be forced to remote work.
Vaccines, tests and data protection
The public have been vocal in recent weeks demanding the publication of the names of those in the Strictly Come Dancing line up who have not been vaccinated. This of course raises the issue of another relevant piece of legislation here: Data Protection.
Just as a reminder: health information, including vaccination records and COVID test results are classed as sensitive data and as such, the highest standards around protecting that data are required. No employer can therefore release such information, whatever the clamour or outrage from others, without specific permission from the employee or a legal obligation.
The ICO has recently published guidance in this area see www.ico.org.uk
It’s complicated, messy and there is a lot of ‘let’s see who gets sued first’. Please don’t let it be you who gets sued, as this is a time for us all to focus on our businesses and organisations to make them robust and fit for purpose in this changing world. No unnecessary legal distractions needed!
My advice to you therefore is: be careful and consider what communications you release. I also advise you to encourage your managers to properly listen to individual concerns and get advice before making decisions around suspensions, dismissals, forced contract changes etc. No harm in a quick reminder for your team and key managers too about protecting sensitive data.
For more help and advice contact me at https://www.