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Can you refuse employment when an applicant has not had the Covid-19 vaccination?

Posted: 10/05/21 by Crispin Rhodes Ltd

Can you refuse employment when an applicant has not had the Covid-19 vaccination?

The matter of refusing to employ job applicants because of not having had the vaccine is a complex area of employment law.

Under the Equality Act, it is unlawful to discriminate a job applicant on the grounds of their protected characteristic (age, disability, sex, race, religion etc). There will be some groups of individuals who therefore will not have had, nor wish to have, the COVID-19 vaccine. It may be because they are in the younger age group which is not a priority; it may be for health reasons, they are either advised or chose to not have the vaccine; or it may be because of pregnancy; or they are from the BAME community, that they wish to either delay when they receive the vaccine or not have it at all.

If a policy is introduced which refuses employment to job applicants because they have not had or chosen to have the COVID-19 vaccine, it could be considered indirectly discriminatory as it is likely to disproportionately affect those from one of the protected characteristics.

Indirect discrimination though, can, depending upon the circumstances, be proportionately justified. However, this in relation to refusing employment has not yet been tested by the courts. For indirect discrimination to be justified, then firstly there must be a legitimate aim to achieve and secondly, the method of achieving the aim must be proportionate i.e. there is no better way in which to meet that aim.

Clearly, the legitimate aim is to stop transmission and act in a socially responsible way in the fight against COVID-19. However, the unclear position is whether requiring a vaccine is proportionate. We know that the vaccine does not stop people passing the virus on to others, although there may be some suggestions it may do. There are also other ways in which employers can be sure the virus is not being passed on by its employees, such as the use of lateral flow tests, which all employers can now request. Although the lateral flow tests are not 100%, the use of them do not have the same impact on the groups of individuals that by taking the vaccine could have.

Given the complexity and the evolving situation with Coronavirus, we would always urge that you seek HR advice regarding managing COVID-19 vaccinations.

To find out more about HR support or any of our outsourced services, please call Crispin Rhodes on 01908 576991 or visit https://www.crispinrhodes.co.uk/

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