Peter Etherington
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Employment Update for Small Businesses
September 2021

Dear Subscriber

This month we revisit the Equality Act 2010 and what it says about asking questions of job applicants about their health. This has become an issue of interest recently for some employers who want to find out the vaccination status of applicants as part of their COVID safety measures.
Please contact me if you would like to find out a bit more about any of the subjects raised in this update or if you need any help or advice.

Please forward this email to any of your contacts who might find it of benefit.

Regards
Peter Etherington
Tel: 01664 668164

www.etherington.co.uk

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Peter Etherington
Medical Questionnaires
Can an Employer ask for Disclosure of Vaccine Status?
Some employers may wish to ask applicants about their COVID vaccination status as part of their COVID safety measures in the workplace. However, under the Equality Act 2010 it became unlawful to ask any applicants questions about their health until selection had been made. On the face of it, therefore, asking about vaccination status is outlawed – but that is not the whole story.

The Equality Act 2010 introduced these measures with the intention of protecting disabled people from being screened out early during recruitment. The question of vaccination status is much more nuanced and not obviously detrimental to disabled people. Many non disabled people have chosen not to be vaccinated.

It is also noteworthy that there is no direct penalty for asking health questions at the application stage, this would only apply in the event that a disabled applicant was asked the questions and was subsequently rejected. They could claim unlawful discrimination and the fact that the questions had been asked in breach of the Act would add weight to their claim. It would be reasonable for a tribunal to conclude discrimination had occurred in such circumstances.

However, it would appear that asking about the COVID vaccination is unlikely to be related to disability as most disabled people would qualify for, and be encouraged to take up, the vaccine. There will be a few people with specific conditions who would be advised not to be vaccinated on medical grounds, so it would be important for the employer to accept that and accommodate it wherever possible in their COVID safety measures.

In addition, there are some specific circumstances where asking health questions at the application stage is permitted, such as where there are job-specific health requirements (e.g. a construction job that requires post holders to be able to climb scaffolding). In that case, the employer should only cover questions relevant to the specific job requirement. It may be, therefore, that some jobs may justify asking for information about vaccine status – that is likely to be the case for care homes, where regulations have been brought in barring anyone entering a care home who has not been vaccinated. It would be a job requirement, therefore, to be vaccinated unless exempt.

As with other medical information, employers also need to ensure they comply with data protection law. That means ensuring there are lawful grounds for processing this data and, as this is classed as a special category of data, ensuring appropriate safeguards are in place to maintain security of the data.

We would advise employers to carry out health and safety risk assessments in order to formulate any COVID safety procedures. HSE has some guidance you may find useful. If these assessments indicate that obtaining vaccine status is desirable or necessary, then they may choose to ask for vaccine information from applicants. If the aim is to limit the number of unvaccinated people in the workplace, then it may be reasonable to assess applicants to gauge whether they are vaccinated or exempt and to reject anyone who is unvaccinated without good cause.

However, this is still unchartered territory, and it is impossible to say how tribunals may treat claims from people who object to the vaccine as part of their religion or belief. We would advise caution, therefore, before rejecting anyone on vaccine grounds, and check carefully the reasons for the lack of vaccination before making any decision.

National Minimum and Living Wage
The current National Living Wage and National Minimum Wage rates are:

  • £8.91 per hour for workers aged 23 and over
  • £8.36 per hour for workers aged 21 to 22
  • £6.56 per hour for workers aged 18 to 20
  • £4.62 per hour for workers aged 16 and 17
  • £4.30 per hour for apprentices under 19 and those over 19 in their first year*

*N.B. Apprentices over 19 and who have completed at least one year are entitled to the appropriate rate for their age.

www.etherington.co.uk