Could COVID vaccine segregation hit workplaces?

An estimated 92.5% of the adult population in the UK tested positive for COVID-19 antibodies during the first week of November 2021, largely due to the fact that over 50 million of them have had at least one coronavirus vaccine.

However, the topic of vaccinations can be a divisive one, much like smoking.

Whilst once smokers and non-smokers mingled at work, at restaurants and in other venues, separate areas came into force, before a total ban in the UK on smoking in public spaces indoors.

And it seems a similar shift in attitude is emerging in relation towards those who are unvaccinated. New Zealand’s new traffic light system means that people who are vaccinated with have a high level of freedom while those who haven’t had the jab will be banned from many activities when COVID cases are high. Italy has also banned unvaccinated people from planes and trains.

Is this likely to translate to the workplace?

Peninsula’s HR Advice & Consultancy Director Kate Palmer understands employers’ concerns but explains segregation in the workplace could become a one-way ticket to a discrimination claim.

“Segregating workforces – regardless of cause or reasoning – will always pose some element of risk to employers. Generally, treating employees differently increases the chances of indirect and direct discrimination, constructive dismissal and/or unfair dismissal claims being raised.

“We have received calls from businesses asking if they could have separate working areas for vaccinated and unvaccinated employees. Whilst this might initially seem like an effective way of controlling spread of the virus, in practice, it’s more likely to lead to an increased number of vulnerable individuals who are medically exempt from having the vaccine being in close contact with each other.

“Additionally, some employees who are medically exempt but have chosen not to disclose underlying health conditions to colleagues, may also feel like their separation from the wider workforces highlights their medical issues, thereby breaching the implied term of trust and confidence in the employment relationship.

“Employers should also keep in mind that any information relating to an employee’s health is protected information for which they could risk GDPR-related claims for sharing without express consent.

“Similarly, by creating a divide, employees may worry over where the line is drawn – for example, they may raise concerns about being overlooked for promotion opportunities, not given the same training or mentoring, or missing out on socialising and networking. In situations whereby an employee has reasonable grounds for refusing vaccination, such as their religious beliefs, pregnancy or other, employers may be indirectly discriminatory if they place them at a detriment for not having the vaccine.

“In order to both protect your business and avoid tribunal claims, I would say it’s always best to keep all employees together but ensure COVID-secure measures are in place and resources are available to encourage those employees who can get the vaccine to do so.”