Commenting on mandatory vaccine Government plans: that the Government has agreed to make jabs a legal requirement for the care sector, Daniel Parker, Associate in the Employment team at law firm Winckworth Sherwood, said: “The Government’s approach to date has been to prioritise older age groups and care home residents. While more individuals within the working population should begin to receive the vaccine in the coming months, it seems likely that younger workers will generally remain a low priority. Therefore, any measures which specifically benefit those who have received a vaccine may well discriminate indirectly against younger staff.
“There is legal scope to justify this discrimination, but it will almost inevitably require a good understanding of the prevailing science and employers should consider whether more even-handed alternatives can achieve the same aims. It may be difficult to justify inviting or requiring vaccinated employees to return to the workplace as a priority without considering whether employees’ preferences can first be accommodated.
“Moreover, the current official advice is that pregnant women should not be vaccinated unless they are at high risk and, if a woman becomes pregnant after their first dose of a vaccine, they should delay the second dose until their pregnancy is over (again, unless they are at high risk). While the vaccine is not necessarily considered unsafe for pregnant women, limited testing has been undertaken. Although the Equality Act 2010 does not prohibit ‘indirect maternity discrimination’, indirect sex discrimination is a potential risk if a vaccine-led return to the office disadvantages pregnant women. This may be easier to justify, as employers are under a legal duty to alter a pregnant woman’s working hours and conditions to remove any significant risk to mothers or their babies. However, employers will again need to maintain a close eye on the evolving guidance.
“Employers will also have to be alert to the changing availability of the vaccine before taking measures which are specifically designed around it. In a widely-publicised move, one employer has signalled its intention to institute so-called ‘no-jab, no job’ employment contracts, accompanied by a substantial programme of private vaccinations for the workforce. However, private vaccinations are not currently available and, at least at present, employers will need to be mindful of both who will be prioritised for the vaccine and who may be excluded, particularly given the real risk of discrimination.”
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