Refusing employment to job applicants because of not having had the COVID-19 vaccination is an area of employment law with a certain level of complexity.
Discrimination in HR Policies
In the event that an employer decides to introduce an HR Policy, according to which, people who have not been vaccinated are refused employment, then there is a high possibility that this policy can be considered indirectly discriminatory. This is because such policy would primarily affect people who might not be able to have a vaccine due to specific reasons.
There are some groups of people who do not wish to have and will not have the COVID-19 vaccine. Some of them might be advised by their doctors to avoid vaccinations. That could include people with certain health conditions, people of young age who are not in priority groups, or pregnant people. The Equality Act 2010 protects job applicants from being unlawfully discriminated against, on the grounds of a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation).
The above, however, do not exclude the possibility, depending upon the circumstances, that an employer can sufficiently (and proportionately) justify the indirect discrimination and the reasons for the policy. For example, indirect discrimination could be justified in cases where there would be a legitimate aim to be achieved, and the method to achieve this aim would be as well reasonable and proportionate (i.e., this method represents the best way to fulfill that goal).
Social Responsibility to prevent the spread of COVID-19
Following the above, the legitimate aim and primary goal for socially responsible employers and individuals is to prevent, control, and eliminate the further spread of COVID-19. However, it is still unclear whether requiring a vaccine is proportionate or not. It could be argued that the vaccine does not stop the virus transmissions, although there may be some suggestions it may do. Moreover, employers can also take other precautionary measures to preserve employee health and safety, such as the use of lateral flow tests, the use of which does not impact certain groups of individuals as the vaccine could have.
Asking prospective employees to disclose their vaccination status
Employers are generally prohibited from asking candidates and prospective employees any health-related questions – and in this case, this would include their vaccination records. There are certain limitations to the above principle, such as for example industries, sectors, and job roles (e.g., working in the care sector, or with vulnerable people) where employers might need to know if employees have been vaccinated or not for particular health and safety reasons. Even in this case though, employers need to consider alternative employment for employees who have not been vaccinated, as best practice.
The fact that this matter has only recently come up, and has not yet been tested with claims in employment tribunals, carries a great risk for employers who are considering implementing such policies.