Another related concern is that if a person is not vaccinated for medical or religious reasons and is then treated differently from other staff because he is out of the office, the company could be accused of discrimination. But if companies can demonstrate that they have a valid reason for collecting this data and the request is a proportionate measure to achieve a legitimate goal, then the legal risks are reduced, says Lucy Lewis, an employment lawyer and partner at Lewis Silkin.
“The challenge for employers is: is it responsible if you take other Covid-safe measures within the company?” said Mrs. Lewis. “For example, if you continue to maintain social distancing, if there’s an element of wearing a mask, can you pass that test that vaccination is reasonable within an organization?”
It’s more common for companies to ask people to get double vaccinated or show evidence of a negative Covid test, currently available over the counter in Britain, to go to the office, she said. She doesn’t expect mandating vaccines to work in the office to become the norm in Britain.
“Whether it’s possible means you’re essentially able to demonstrate to a court that this was necessary within your company,” Ms Lewis said. “In types of businesses where you have a lot of very vulnerable people, it’s much more likely to be reasonable because the risk to those people is so much higher.”
The furthest Britain has gone in mandating vaccines for work is in nursing homes. The government has said anyone working in nursing homes or volunteering, unless medically exempt, must be vaccinated from Nov. 11. Even to take this step, parliament had to pass a new piece of legislation, which is now the subject of legal challenges.
Vaccination coverage is high in Great Britain: 78 percent of the population over 12 years of age has been vaccinated. But there are differences between age groups, with younger cohorts less likely to be vaccinated. In the United States, there is evidence that vaccine mandates have increased rates within companies by more than 90 percent.
Businesses can decide who can and cannot enter their buildings, especially for health and safety reasons. But in the case of the coronavirus, if other measures such as mask-wearing, ventilation and social distancing can reduce the risks, then it’s hard to justify denying people entry, Ms Cudbill said.
“I think they can justify it, but they just have to think about how and make sure it’s not just a reflex response,” she said. “Because it is being challenged. There is absolutely no doubt about it.”