Co-authored by Jemille Gibson and Helen Goss
Since the first COVID-19 vaccine outside of trials was administered in the UK on 8 December 2020, the vaccination programme has continued at pace, with 15% of the UK population having received at least one dose as of 2 February 2021.
With preliminary data from Oxford University released on 1 February indicating that even a single dose may have a significant effect in reducing the transmission of the virus, thoughts naturally turn to how we might restore some of the activities restricted or totally stopped in order to control the pandemic, particularly in areas of the leisure and hospitality industry, which have been largely shut down since the first lockdown in March 2020.
Notable announcements have made by Saga, who have announced that they will only permit customers who have had both doses of vaccine (currently all approved vaccines require two doses) to go on cruises with them, and Qantas, who have suggested that only vaccinated customers will be allowed to take international flights with them.
Are there legal risks in doing this? Can mandatory vaccines be the centre of the industry’s re-opening policies?
The lockdown restrictions currently set out in The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, albeit subject to constant change, have had some constants in that they have generally required businesses which could be open in the various lockdown phases to ensure they carry out a risk assessment in relation to COVID-19 transmission, and have regard to relevant government guidance.
For the leisure and hospitality industries, this often entailed things like one way systems, attendance limits, and pre-booking as ways to support social distancing. Businesses were also required to support the test and trace system by taking and retaining the details of visitors.
In relation to customers, in addition to common law duties, the Occupier’s Liability Acts of 1957 and 1984 impose duties on business owners to take reasonable steps to ensure that any visitor will be reasonably safe in using the premises for the purposes the visitor is invited. It is quite clear that this would cover a duty to ensure that customers do not face an increased risk of contracting the virus by attending a venue, whether for an event or for any other reason.
Would requiring the vaccination of customers assist in discharging the duties above, particularly in light of evidence that vaccinated persons are less likely to transmit the virus to others?
It would appear, considering no other factors, that yes it would. Vaccinated customers would have a much reduced risk of contracting the disease themselves or from staff members. This would allow some areas of the economy which have been seen (wrongly in the view of the sector) as vectors for transmission (pubs, theatres, cinemas, etc.) to operate with reduced restrictions.
Israel, having administered almost 60 doses per 100 citizens as of 2 February, is now issuing vaccine passports allowing people to attend restaurants and cultural events, where the current suite of restrictions there would normally prevent this.
Closer to home, while there has been speculation about vaccine passports, there have been no concrete announcements. Speculation about requiring vaccination before the resumption of pre-pandemic style jet setting has more of a precedent. Several nations already require vaccines before entry, examples being Ghana and Angola, which require a certificate verifying vaccination against yellow fever for all entrants. Several other countries require vaccines for yellow fever or other diseases depending on their own circumstances or the travellers’ recent itineraries.
So far, the UK, and at the time of writing, no other country appears to be going down the route of requiring vaccines by law, and it is arguable that this is forbidden under section 45E Public Health (Control of Disease) Act 1984, which forbids regulations requiring a person to undergo medical treatment, which includes vaccination.
However, one can easily see how a certificate/passport regime might create societal pressure on holdouts to get the vaccine in order to re-join daily life as venues and events start up again.
So can I go ahead and require my customers to be vaccinated?
At the time of writing, as the UK goes through its priority groups, we are not yet in a situation where everyone has had the opportunity to be vaccinated whether they wish to be or not. In particular, the priority groups are primarily set on the basis of age.
A business requiring a vaccine for access before a point at which any person could access the vaccine if they wished to would likely be liable for indirect discrimination on the basis of age, as most younger people simply do not have access to the vaccine yet.
Even once they do, there may be people who cannot take the vaccine for health reasons. The vaccine is not currently recommended for pregnant women, as it has not been trialled on them yet, and there may be persons who for other health reasons cannot take the vaccine in any event.
Thirdly, there may be religious or philosophical reasons why a person considers they cannot take the vaccine, although several representative religious groups have released statements endorsing the vaccines. A person with a specific belief against either this vaccine or any vaccines may be protected under the Equality Act if they can show their belief meets the standard of a protected philosophical belief. It is an open question whether such a belief would qualify. For example while veganism has been shown to be protected (Casamitjana v The League Against Cruel Sports (2020)), vegetarianism was not (Conisbee v Crossley Farms Limited (2019)).
However, the right to access services as a customer is not absolute, such that there would seem to be more scope in requiring vaccines in order to access certain venues and services.
There may mileage in an argument that any discriminatory effect is justified as a proportionate means of achieving a legitimate aim, particularly for venues that rely on people being close together, as they might reasonably argue that the only way they can feasibly operate, without a risk to health is to ensure customers are protected before coming into what would potentially be an extremely infectious environment.
What about staff?
While it seems several employers would like to do this, this would be much more challenging, and many of the same issues that would be raised by a blanket policy forbidding employees to work unless and until they have had the vaccine, and/or subjecting employees to disciplinary action (including dismissal, for failing to do so).
In addition to the discrimination issues discussed above, and with the virus being identified only in December 2019, and the vaccines still being very new, there is also the prospect of an employer being held liable for side effects by way of a personal injury claim, if the employee has taken the vaccine to comply with an employer requirement. There have been very rare instances of allergic reactions to the vaccine.
More fundamentally, there are potential arguments that forcing employees to have a vaccine may breach their human rights, in particular, Article 8 of the European Convention on Human Rights, which protects the right to a private life, and has been interpreted widely so as to potentially cover being forced to undergo medical treatment, including vaccination.
A proportionate means argument, while arguable, would have more difficulty as regards staff, given that the potential consequence of dismissal is rather more severe than simply being denied access to an individual service.
For staff, employers may only be able to go as far as strongly recommending vaccination, disseminating factual, impartial information about the vaccine and its capacity to protect and potentially requiring more of customer facing employees than others in terms of mitigating risk.
Requiring customers to disclose whether or not they have been vaccinated is likely to engage provisions of the UK GDPR, especially if the business stores any of this information, as it will be classed as special category data.
Business could justify this processing as being in the public interest for public health, as a way of operating in a way that mitigated the risk of exacerbating the pandemic. However, this will need to be reflected in privacy policies once a decision is made to proceed in this way.
Without government support for a form of vaccine passport regime, there may be difficulties in requiring customers to show vaccination before accessing services, especially as recipients are not currently receiving much more than a card telling them which vaccine they have received. One can already anticipate GPs being overwhelmed by requests for letters confirming their patients have received vaccinations.
Businesses need to balance the profiles of their customers with the risks of operating, and act in a way proportionate to their health and safety obligations, while respecting the personal choice of customers. Business reliant on large aggregations of people may well be able to justify such a policy on safety grounds, but will need to be mindful of potential backlash from groups who do not want to be vaccinated.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.