Does insisting that employees are vaccinated amount to indirect discrimination?

With an insouciance remarkable even for this government, the prime minister’s official spokesperson overturned any number of conventions about employment law with a casual observation that any policy of “no jab, no job” in the workplace is a matter for individual companies. Even if it applied only to new recruits and not existing staff, it would still be a radical departure from most previous practice and, indeed, the prime minister’s official policy line set out as recently as April, when the spokesperson stated: “Taking a vaccine is not mandatory and it would be discriminatory to force somebody to take one.”

Being as helpful as ever, ministers previously inclined to reject the notion as “discriminatory” now sound more enthusiastic. The foreign secretary, Dominic Raab, declares it “smart policy”, and the transport secretary, Grant Shapps, reckons it a “good idea”. Some months ago the justice secretary, Robert Buckland, was the very model of judicial caution, suggesting it would all have to be tested in court. Now he says it’s lawful, for freshly engaged staff.

MPs and peers of all parties, and the rest of us, must wonder how such a radical reform of public health procedures, employment law, and even human rights can be enacted without a parliamentary debate, let alone a proper bill, research and judicial review. It is, surely, taking the crown prerogative too far.

The policy, however smart it might sound is, though, problematic. One obvious problem presents itself almost immediately – what to do about those prospective employees with a valid medical reason that exempts them from vaccination? They would still present a potentially infective health risk to a company’s clients, but would the employer be entitled not to take them on, or to confine them to non-public facing roles? More widely, would companies be required or allowed to declare that, say, their staff were 100 per cent vaccinated, even if that then put them at an advantage over a competitor, because that competitor employed someone who couldn’t be vaccinated?

As the months go on and booster doses of new vaccines for new variants become necessary, what would an employer do if a worker refused to take the new jab? The whole basis of the policy would then be undermined.

Then, of course, there are the discrimination and human rights implications. Insisting on vaccination is not, legally, direct unfair discrimination against people with a protected characteristic, such as race or disability. However, because of the disparity in the uptake of vaccines and the incidence of Covid among different ethnic groups, and their overrepresentation in jobs that may insist on vaccination (such as care homes), it amounts to indirect discrimination, which is unlawful.

The most obvious drawback to a voluntary policy affecting only new recruits is that it might take so long to become effective through staff turnover that it makes little real difference, especially given relatively high take-up rates. New variants may emerge that are more vaccine-resistant, and it could become the case that it would be the patients, clients and customers of various companies that represented the health threat to staff in a fresh pandemic rather than the other way around.

A voluntary, partial, legally dubious policy of “sometimes no jab, no job” would be so patchy as to be fairly useless given the resentment and disruption it might engender. The case for coercion is weaker in a society with a relatively healthy uptake and minimal anti-vax sentiment than in a more hesitant one further away from herd immunity. A more fruitful route might be to move the focus from workers to their offspring, and to find a safe way to give the jab to the very many willing and public spirited teenagers who want it. It would reduce transmission in schools, key infection hubs and prevent case numbers creeping up again when the classes reassemble in September. But there seems to be surprisingly little discussion of that easy “win” .