This could open a can of worms for the NHS

Since the vaccine programme was rolled out, there has been a lot of discussion about whether employers can require their employees to have the jab. More recently, steps have been taken to introduce a legal requirement for care staff to have the jab and several high profile employers, including Facebook and Google, have announced that they will require staff to be fully vaccinated before they return to the workplace.

One controversial area, however, is whether such policies could be enforced against all staff; including those that do not wish to have a jab for reasons connected with a protected characteristic.

Under the Equality Act 2010, those with certain protected characteristics including religion or belief are protected from discrimination on grounds of that protected characteristic.

Ethical vegan employees and vaccinations

Following an Employment Tribunal decision last year, where ethical veganism (eating a plant-based diet and avoiding all forms of animal exploitation) was held (on the facts of that case) to amount to a philosophical belief, worthy of protection under the rules relating to religion and philosophical belief, it is likely that ethical vegans will benefit from that protection.

Whilst Covid-19 vaccinations do not contain any animal products, all such vaccinations are required to have been tested on animals during their development. On a strict interpretation, the vaccines (and many other medications) would be incompatible with ethical veganism.

On this basis, an employer who wants to introduce a requirement for its employees to have a Covid-19 jab will need to consider any objections from any ethical vegans in their workforce and consider whether to exempt them from the policy on that basis.

A requirement for all staff to have received a vaccine would likely amount to indirect discrimination against ethical vegans in the workplace (i.e. the policy has more of an impact on ethical vegans than other staff) and therefore an employer would need to be able to objectively justify its policy to insist on it for affected employees.

Employers will need to tread carefully and give real consideration as to whether they exempt ethical vegans from any blanket requirements. In particular, if they decide not to make an exception, they will need to explain why alternative measures, such as requiring ethical vegans to undergo regular testing, would not have been sufficient to mitigate health and safety concerns.

Employers who refused to hire, or dismissed ethical vegans because of their vaccination status could face claims in the Employment Tribunal for discrimination (and from those dismissed, unfair dismissal), where successful claimants could be compensated for their financial losses and injured feelings.

Our advice to employers

We continue to urge our employer clients to be cautious about blanket “no jab, no job” requirements, not just because of the risk of discriminating against certain groups, but also because of how controversial this could prove to be amongst employees.

We would suggest that employers begin by encouraging their employees to get vaccinated; and that they could provide access to accurate information about the vaccination programme, paid time off for appointments and assist with travel arrangements.