Is it fair for employers to treat the non-vaccinated differently?

1. Is it fair for employers to treat the non-vaccinated differently? Fair or unfair, it’s happening, and employers and governments are increasingly pursuing policies to treat non-vaccinated people differently. Whilst in Canada Quebec is imposing state-wide health surcharges on the non-vaccinated (see the BBC article here), employers in the UK and around the world are applying their own pressure, removing sick pay benefits and imposing health insurance surcharges. Morrisons, Ikea, Next, Citibank and Wessex Water are amongst those treating non vaccinated staff differently. Initially Morrisons were amongst the first to withdraw enhanced sick pay, and this week Ikea announced it was to pay SSP only to unvaccinated employees who have to self-isolate, or who are absent because of having Covid. There are caveats in the Ikea policy, presumably for those who are unvaccinated based on medical advice. A short while ago Next announced it was following suit, adding it to a growing list of employers, which also include Citibank and Wessex water. What’s the UK legal situation for treating the non-vaccinated differently? So, whether or not it’s morally fair to apply different policies to the unvaccinated, is it legally fair in the UK? The answer is that sometimes it will be and sometimes it won’t be. Under Equality laws there are 9 protected characteristics, and being unvaccinated is not one of them, and so there is no automatic protection for unvaccinated employees under our discrimination laws. Having a disability is, however, one of the protected characteristics, and if a particular unvaccinated employee could show that they should not have the vaccine because of their disability, the employer could quickly find itself facing a discrimination claim. Could non-vaccinated disabled employee differently? an employer defend a discrimination claims from treating the In the face of a discrimination claim from an employee with a disability, an employer would have to show that in treating an unvaccinated person differently, e.g. by removing sick pay, it had used ‘proportionate means to achieve a legitimate aim.’ Employers would no-doubt argue that the ‘legitimate aim’ would be to try to achieve better staffing levels, but for that argument to succeed, they would have to show that they were suffering from staff shortages in the first place. Even then the hurdle would be high, because the chances are that disabled non-vaccinated staff would make up a tiny minority of the

2. overall non-vaccinated community within the employer, and so the principle of proportionality is, in our opinion, unlikely to stand firm. Important to consider non-vaccinated employees on a case-by-case basis There are going to be some interesting legal cases ahead, that is a racing certainty. For now, myHRdept would suggest that any employer considering implementing detrimental terms and conditions for non-vaccinated employees look at each non-vaccinated employee on a case-by-case basis. Where an employee appears to have a genuine medical reason for not being vaccinated, it would seem prudent to not subject that person to detrimental terms. Good quality occupational health advice may be needed to assess particular cases, and employers should publish and communicate a policy to frame their approach. Our summary suggestions for implementing terms that treat the non-vaccinated differently In summary, prior to changing policies that may detrimentally impact the unvaccinated, employers should: ● Check whether they actually have a staffing problem that is related to their non-vaccinated community; ● Publish a policy and discuss this with employees, giving clear business reasons for why the policy is necessary; ● Include in the policy a provision to exempt medically-required non-vaccinated staff from any detrimental impact; ● Give an opportunity for non-vaccinated people to appeal against any decision to deny sick pay, or to apply a surcharge for medical insurance benefits (or any other detriment); and ● Take advice from a competent HR advisor or employment lawyer BEFORE implementing proposed changes. HR Support from myHRdept If you need help with employment law compliance, or just want a knowledgeable advisor on hand, myHRdept’s HR support services are ideal. Now in our 20th year, we include within all of our HR outsourced HR packages a bank of support hours to help manage staff issues. In addition to drafting new HR policies for our clients, we also retain occupational health services. For more about the team behind myHRdept, see our meet the team page.

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