What Are The Potential Discrimination Risks Associated With Requiring Employees To Have The COVID-19 Vaccine?

Mandatory vaccination is a topic that has gathered significant attention over the past weeks and months. However, employers should be aware that there is a risk of exposing themselves to discrimination claims if they seek to compel employees to have the vaccine.

Employers should familiarise themselves with the protected characteristics under discrimination legislation in Northern Ireland, such as:

• Age;
• Disability;
• Sex;
• Pregnancy/maternity;
• Religious belief and/or political opinion;
• Sexual orientation; and/or
• Race.

It is possible that employers’ actions could constitute direct discrimination by requiring a particular employee to be vaccinated, or by treating them less favourably because they do not wish to have the vaccine or are unvaccinated.

It is also possible that claims for indirect discrimination could be brought on the basis that:

• the employer requires employees to be vaccinated (the provision, criterion or practice (“PCP”));
• that PCP puts (or would put) an employee and others with the same protected characteristic at a particular disadvantage;
• the employee suffers that disadvantage; and
• the PCP cannot be justified i.e., it is not a proportionate means of achieving a legitimate aim.

Employers could attempt to argue that requiring staff to be vaccinated is a proportionate means of achieving the legitimate aim of ensuring the health and safety of staff and visitors in accordance with the Health and Safety at Work (Northern Ireland) Order 1978. However, this would depend on the nature of the work being undertaken and whether employees could continue to carry out their duties from home.

The main protected characteristics to be aware of in the context of the COVID-19 vaccine are:

• Pregnancy: Although research carried out to date does not indicate any safety concern or harm to pregnant women, there is insufficient evidence to recommend routine use of COVID-19 vaccines during pregnancy.
• Age: As the vaccine is currently being rolled out based on age groups who are most vulnerable, employers should consider that any requests for employees to have a vaccine before returning to the workplace could discriminate against younger employees who are not high on the vaccine rollout priority list.
• Religious belief and/or political opinion: Although perhaps unlikely,it is possible that objections to receiving the vaccine could be protected on the basis that they are connected to a religious belief (e.g. objections to particular ingredients of the vaccine or to receiving vaccines in general). 
• Disability: There will be individuals who are not recommended to have the COVID-19 vaccine because they:
  • are allergic to ingredients of the vaccine;
  • have a history of anaphylaxis, or an unexplained anaphylaxis;
  • have a fear or phobia of needles (trypanophobia) which may amount to an anxiety disorder.

The employer will need to consider these issues before taking any decisions in relation to implementing a mandatory vaccination policy.