Back in January 2021, I wrote a blog about Pimlico Plumber’s “No Jab, No Jab” policy and discussed whether I thought it was a reasonable and lawful policy to introduce.
Since then, we have seen a number of high profile companies dictate to their employees that to return to the office, they will need to be double jabbed. The Government believe that many firms will say it is a good idea, of course, but we’ve seen a number of large corporates like Facebook, Google and even law firms like the US Law Firm Morrison & Foerster requiring staff to be have had two vaccinations before their office returns next week. According to The Times, 1 in 4 bosses will demand on premises staff to have been double jabbed.
We’ve also seen the UK Government mandate vaccinations for Care Home Workers.
So my question is; has the legal position changed at all since January?
And the answer is, yes, possibly it has shifted.
In my previous blog, I wrote about the Equality Act and whether mandatory vaccine policies would be in breach of it. I also mentioned the Human Rights Act, and the right to private life, and thought that might be the trump card.
However, a recent European Court of Human Rights ruling has demonstrated that there is a possibility that the Courts would rule mandatory covid vaccination policies to be lawful.
The judgement in Vavřička and others v Czech Republic  ECHR 116 earlier in the year has attracted attention, and is an insight in to how the ECHR may consider mandatory vaccination policies for covid if it were to be asked to decide on them.
The case is a Czech Republic one. The Government there introduced a compulsory vaccination programme requiring children to be vaccinated against nine diseases. Financial penalties were imposed for non-compliance. Those children who had not been vaccinated were banned from attending pre-school.
After parents were fined, 6 individuals argued that the mandatory vaccinations were a breach of their human rights and in particular Article 8 (right to private life) and Article 9 (right to freedom of thought and religion).
The ECHR found that the Czech’s national vaccination programme did interfere with the claimants’ rights to a private life.
However, the Court decided that the interference was justified as a proportionate means of achieving a legitimate aim.
It said that the relevant vaccinations were known to be ‘safe and effective’. It said that the fines were not excessive and non-vaccinated children were not prevented from attending school once they reached the compulsory school age, it was only pre-school.
The Court also said that the Czech Republic had a legitimate aim in its desire to protect its population against serious disease.
Where does it leave us?
It is clear that it may be possible for an employer to require that its employees be fully vaccinated and that this may not contravene the European Convention on Human Rights or the Human Rights Act.
The decision does not give the green light for mandatory vaccines, as discussed previously, but it does give us an insight into how courts may consider things here in the UK.
The question would be; is a mandatory vaccination policy a justified and proportionate means of achieving a legitimate aim. Some advocates for the vaccine would argue it is the best way of stopping Covid and protecting employees and others in the workplace. Whether you agree is immaterial, as ultimately it is the judges that will decide.
For now, I maintain the view that Employers should proceed carefully with plans to require all workers to be vaccinated. They should, in my view, allow opt outs for those who feel strongly against it. Certainly, dismissing an employee for refusing to be vaccinated has, in my view, some risks.
There are some other issues which need to be considered from a data protection point of view, as to whether holding sensitive personal data on vaccination status is covered in your DPA policies and whether the employee has consented to you holding and storing that data. Similarly, even if a company wanted to adopt the Covid Pass type system, this causes data protection issues beyond the scope of this article.