“Have you been vaccinated against Covid-19?” Employers across the real estate sector should think carefully before asking this seemingly straightforward question of employees, as it comes with many legal risks.
Employers must first establish a clear rationale for assessing who has and has not been vaccinated in their workforce. The vaccine is not the longed-for panacea to the immediate crisis and employers should consider the extent to which it will actually meet their objectives.
The effectiveness of the vaccine in reducing risk of infection and transmission remains uncertain, and vaccinated individuals need to wait around three weeks after the final dose before protection is effective. Even then, they may still transmit the virus.
Presently, not everyone is advised to get the vaccine, including pregnant women and those with certain allergies, and advice to other groups, including breastfeeding mothers, is unclear.
Risk of discrimination
In light of this, subjecting anyone to a detriment because of their refusal or inability to be vaccinated may constitute unlawful discrimination and give rise to discrimination claims.
There are numerous reasons why an individual may not be vaccinated, and many grounds – including medical and religious – are protected under equality law. An “anti-vaccination” belief may even merit legal protection in the UK, although this has not yet been tested.
Merely asking the question “have you been vaccinated?” increases the risk of discrimination claims, as employees may disclose personal information when answering to explain why they have not been vaccinated. Once in receipt of this new information, the employer may be under a duty to take action, such as making reasonable adjustments in respect of a previously unknown disability. Consequently, an employee could claim that any subsequent action taken by their employer was due to the information disclosed; for example, an employee selected for redundancy after telling her employer that she is in the early stages of pregnancy may claim her selection was due to her impending maternity.
Employers should also remember that it is unlawful to ask potential recruits about their health prior to offering them a role, other than for prescribed reasons. In many cases, questioning an individual’s vaccination status during recruitment would be unlawful. It is also likely to result in disclosure of other personal information, which exposes the would-be employer to potential discrimination claims if the individual is not recruited.
Discriminatory policies
Employers must ensure that any policies based on employees’ vaccination status do not indirectly discriminate against those who hold protected characteristics. The categories of individuals who will not have been vaccinated are likely to include groups that are protected under equality law (given that their vaccine status may be linked to protected characteristics including age, medical condition or religion). Any policy that disadvantages those who have not been vaccinated will have a disproportionate impact on certain protected groups and, therefore, require objective justification. The employer will need to establish the policy’s “legitimate aim” and explain why this cannot be achieved through less discriminatory means. In short, the greater the impact of the policy, the greater the justification required for it to be lawful.
By way of illustration, employers in real estate may wish to identify which employees have been vaccinated in order to assign high-risk construction roles or access to sites. Such policies will disadvantage anyone who has not been vaccinated and potentially hinder career progression.
In these examples, the employer is likely to establish the legitimate aim of protecting the health and safety of its workforce. However, whether the policy is proportionate to this aim will depend on the circumstances of the employer and its workforce. It may be difficult to demonstrate that a blanket policy, which applies irrespective of role and risk, is proportionate.
The vaccine has multiple limitations (eg its protection, effect on transmission, and number of people who are advised or may choose not to be vaccinated). Therefore, employers should continue to follow current government guidance on making their workplace Covid-secure, including requiring social distancing, face masks and large-scale working from home where possible. Where a policy has a disproportionate impact on a protected group, the employer will need to show that these existing precautions are insufficient to protect their workforce and those with whom they work.
Health and safety
If an individual gets vaccinated on their employer’s insistence and then suffers severely because of it, an employer may be liable.
The employer should also be mindful of relying too heavily on the vaccine to keep their workforce safe, both on sites or in offices, given its limitations. The vaccine may create a false sense of security among staff returning to workplaces, which may cause infection levels to increase. Employers who fully open sites, offices, or warehouses prematurely – and especially those who insist on attendance – may come under public scrutiny if their staff are transmitting infection in the local area.
Data protection
Finally, the simple answer “yes” or “no” would be “data concerning health”, comprising a special category of data under the General Data Protection Regulation. Processing this, including simply recording the answers, is only permitted in limited circumstances and where appropriate safeguards are in place. In answering the question, employees are likely to provide further special category data explaining why they have or have not been vaccinated, which, once processed, may be unlawful under the GDPR.
Crucially, the employer’s purpose in asking the question is critical to establishing whether it is lawful to process the answers. Therefore, the employer should be clear from the outset about what they hope to achieve by asking the question, and whether they might achieve the same objective by less intrusive means.
Hannah Ford is a partner and Sarah Taylor is a senior associate at Stevens & Bolton
