For some businesses, overseas business travel may be fundamental to the ongoing operation and success. With the transport secretary confirming an NHS app will be used as a COVID passport for travel abroad, many businesses are questioning whether vaccinations may be required for employees due to embark on business trips overseas. The legal issues surrounding mandating vaccinations have not changed; does it contravene article 8 of the Human Rights Act? Does it indirectly discriminate against certain groups of people, such as young people who are not able to get the vaccine yet, or those with disabilities, who believe by having the vaccine there would be greater risk to their existing health? Or those from a BAME background who are concerned about the taking of the vaccine? The legal issues are yet to be tested.
As with any employment situation, the context and circumstances must be considered, and so different circumstances may enable different courses of action.
Clearly, if another country is requiring Covid-19 vaccinations (just as some already do with yellow fever), and travel to this country is critical, then there can be a strong business case to argue for requiring the employee to be vaccinated. Through consultation with the employee(s), this can potentially be achieved.
However, where it becomes not so straight forward, is whether the employee does not wish to take the vaccine (remember, the UK Government are not mandating it), or the employee has concerns or is not able to have the vaccine and those reasons are linked to a protected characteristic (age, i.e. young people, pregnancy, disability) as mentioned.
As with any employee concern, taking care to listen to their reasons is fundamental, along with exploring alternative ways in which the task in hand that is requiring the overseas travel can be achieved (i.e. through using technology instead). The ultimate risk that businesses will face, is whether mandating the vaccine is constituted as indirect discrimination, and this is yet to be tested. When dealing with indirect discrimination, a court will look to understand whether the discrimination was proportionately justified. So there must be a legitimate aim to achieve and the method of achieving that aim must be proportionate i.e. there is no better way in which to meet that aim.
For those countries that are not mandating Covid-19 vaccination passports, then could taking lateral flow tests before international travel for example be considered an alternative to achieving the aim, which would be to ensure continued operation of the business?
However, for those countries that are mandating Covid-19 vaccines, what if taking lateral flow tests is deemed insufficient – could the discriminatory action be considered lawful? Before reaching this conclusion, businesses should carry out thorough consultation with the employee, explore all avenues to reasonably adapt the role and duties before making any significant employment decision.
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