Covid Vaccination Status and Employment

Can an employer ask my Covid vaccination status when I apply for a job?

Unfortunately, the answer to this question is unclear.

As a general rule employers are not able to ask prohibited health questions of somebody who has applied for work before offering the position to the applicant.

The definition of "offering work" is "making a conditional or unconditional offer of work".

The European Convention on Human Rights Code states that "job offers can be made conditional on satisfactory responses to pre-employment disability or health enquiries or satisfactory health checks". The Code makes it clear that if job offers are conditional upon satisfactory health checks, those enquiries should be relevant to the job and that reasonable adjustments are made for disabled applicants. However, in most cases, health questions cannot be asked before the job offer is made. Moreover, employers need to take care not to discriminate against potential employees in response to the results of such health enquiries or health checks.

The rationale behind these provisions is to ensure that disabled applicants are assessed objectively, and their applications are not rejected because of their disability. Asking prohibited questions can have the effect of switching the burden of proof in a disability discrimination claim on to the employer, to prove that no discrimination took place.

Unfortunately, the legislation does not define in any detail what is meant by a question regarding the health of the applicant and what this might include. The legislation does provide that a question to determine whether a candidate has a disability or not is a health question. Likewise, the Code firmly states that a question about sickness absence is a health question. It will be interesting to see whether a question about vaccination status is determined to be a health question.

Some questions are lawful. It is possible that questions about a candidate's vaccination status could be lawful under such exclusions. It is lawful to ask a question where it is necessary to determine a candidate's ability to carry out a function intrinsic to the job. It is also lawful to ask a necessary question relating to reasonable adjustments that might be needed for a candidate to carry out the job.

However, this issue is yet to be determined by the higher courts which provide precedent as to how Employment Tribunals are to interpret such legislation.

Other issues which employers may wish to consider and take appropriate advice on include:

i. Can an advertisement state that candidates must be vaccinated?

ii. Can an offer of employment be conditional upon proof of vaccination?

iii. Can employers insist that their employees tell them whether they have been vaccinated?

iv. What are the employer's data protection obligations in relation to vaccination information received from employees?

This is not legal advice; it is intended to provide information of general interest about current legal issues.