With every decision we make in business there is a risk, and this is no exception.
To choose to ask a candidate about their vaccination status is neither here nor there, however the intention behind why you want / need to know, along with what you do with the data and the way you manage it, could see yourself in hot water very quickly. Let’s explore this a little more.
Covid Vaccinations are not a protected characteristic, this is important to know. The reason being, the question can be seen as relatively straightforward and logical to ask, especially during the pandemic when we are all trying to do our part and limit risk to everyone else. However, the answer given and the reasons behind the individuals choice to have the vaccine or not, poses a whole raft of potential issues.
If the candidate in this instance was right for the job but because of their vaccination status was turned down because you want everyone in your business to be vaccinated. Then this can be deemed as less favourable treatment and discriminating against the individual. This may not be anything to worry about as it isn’t a protected characteristic under the Equality Act, (namely age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation), or should you be worried? The answer is not as easy to answer as we would hope. The candidate could have under lying health issues which stops them from having the vaccination or maybe there are religious reasons to name but a few. If this is the case, then as a business you have potentially indirectly discriminated against a candidate.
As you can see it is not straightforward, there are also other repercussions to think about before asking the simple question, these could be:
The type of information and the way you handle it can be cause for concern, this is because it could be deemed as ‘data concerning health’, a special data category under the General Data Protection Regulation (GDPR). Processing this information, including recording the answers, is only permitted in limited circumstances, with the appropriate safeguards in place. This is because candidates are likely to provide further potential special category data, in order to explain the reasons as to the rationale behind the answer given. Once processed this data could be deemed unlawful under the GDPR.
It is therefore imperative to understand the employer’s justification behind asking this vaccination question as it can determine whether it could be deemed lawful to process the answers. The employer should be clear from the start about what they hope to achieve by asking this question and whether they may achieve the same objective using less intrusive means.
The government are continuing to look at COVID-19 and what this means for workers in certain sectors, an example would be that although vaccines are not a legal requirement, nor mandatory, as they are for workers of the NHS and care workers.
It is also useful to know that an anti-vaccination belief may even merit legal protection under the Equality act in the UK, however this is still untested and very much being discussed.
The question could also result in a candidate lying about their vaccination status at interview, if the candidate feels they have been bullied or pressurised into a certain response, to secure the role by giving the ‘right’ answer, this too could be seen as unfavourable treatment and pose a risk to the business and employment – employee relationship.
Employers should be mindful that relying too heavily on the vaccine to keep their workforce safe, both on site, and in offices can be detrimental, due to the vaccine’s limitations; protection, effect on transmission and number of people who are advised or may choose not to be vaccinated. Thus, potentially creating a false sense of security among staff returning to the workplace, which in turn could cause infections levels to increase.
Employers should continue to follow current government guidelines and other bodies such as the Health and Safety Executive on making the workplace COVID secure including; requiring and enforcing social distancing, wearing face-masks and working from home where applicable.
As you can see there is much to consider and is very much a risk-based approach to the scenario. If you would like further support on this for your individual business, please get in touch with a member of the team who will be able to support your further firstname.lastname@example.org or 01223 641 017.