OUULJ Blog Essay Competition 2022 Winning Submission: Does and should differential treatment based on vaccination status constitute "discrimination "in English law?

The OUULJ congratulates Connie Trendle for her winning submission of the OUULJ Blog Essay Competition on the topic of 'Does and should differential treatment based on vaccination status constitute "discrimination "in English law?', posted below. We would also like to thank 7 King's Bench Walk​ for its generous sponsorship of the Competition. 

Differential treatment based on vaccination status may constitute “discrimination” in English Law. Whilst the Equality Act 2010 is not the only law that such differential treatment could violate, the possibility of liability under this legislation is especially illuminating and will be the focus of this essay. There is significant scope for debate because our answer rests on an ability to apply and construct the language of a statute whose writers likely did not have global pandemics, or anti-vaxxers, in mind. Notably, the term ‘philosophical belief’ in the statute lacks definition, and, I propose, leaves significant scope for judges to simply assert their preferred outcome or the popular opinion. It is thus unlikely that differential treatment based on vaccination status will constitute discrimination on the ‘philosophical belief’ characteristic, though there may be some opportunity under other parts of the statute.

With the concerns of judicial discretion in mind, I turn to consider whether differential treatment based on vaccination should amount to discrimination in English law. I propose that discrimination, in this context, occurs when a person is not allowed to hold and maintain their belief, or where their autonomy is so heavily restricted so as to be tantamount to a refusal of their ability to follow their belief. This is distinct from setting up reasonable requirements of access to a privilege, which allow the person a genuine choice between maintaining their belief and accessing the privilege. I will support this distinction with normative arguments and attempt to enunciate its application through the example of employment discrimination.

Whilst there may be some cases of vaccine refusal which come under the protected characteristics of religion, pregnancy, or disability, those who refuse vaccination because of affiliation with a conspiracy theory are most likely to argue their case as discrimination based on a ‘philosophical belief’. The Equality Act 2010 provides that ‘belief’ means ‘any religious or philosophical belief and a reference to belief includes a reference to a lack of belief’. [1] There has been some elaboration on these requirements. Namely, a ‘philosophical belief’ must be genuinely held; a belief rather than an opinion or viewpoint based upon the present state of information available; relate to a weighty and substantial aspect of human life and behaviour; attain a certain level of cogency, seriousness, cohesion and importance; be worthy of respect in a democratic society; and not in conflict with the fundamental rights of others.[2]

It will be difficult to show that anti-vaxxers do not genuinely hold their belief. There is, however, more scope for the argument that anti-vaxxers’ beliefs are not truly beliefs, but rather opinions based upon the present state of information available, and indeed Rabson and Marshall make this point.[3] However, this seems to only apply where the reason for vaccine refusal is a concern about lack of evidence, such as to the efficacy of the vaccine, its purpose, or its contents. The case of McClintock v Department of Constitutional Affairs, for example, specifically concerned a belief that there was ‘insufficient evidence’ regarding the efficacy of same-sex adoption.[4]  If, however, the reason for refusing the vaccine was not related to a concern over a lack of evidence, it would be more difficult to draw an analogy and dismiss the case. For example, if an anti-vaxxer’s argument is that humans should not rely on artificial health protection but rather only rely on natural immunity, this is not merely ‘an opinion based upon the present state of information available’, since it does not rely on any suggestion that the vaccine is insufficiently evidenced. Thus, whilst most anti-vaccination beliefs will not meet this requirement, it is not impossible that some cases could succeed on this point.

Taken seriously, it is difficult to argue that an anti-vaxxer’s belief does not relate to a ‘weighty and substantial aspect of human life and behaviour’. In McEleny v Ministry of Defence, this requirement was satisfied because the belief there was ‘concerned with fundamental questions … including where sovereignty lies … [and] the right to self-determination’.[5] Obvious analogies can be drawn with anti-vaccination arguments. Conspiracy theories concerning micro-chipping, surveillance or health risks go to ‘fundamental questions’ of autonomy and self-determination.

It has been held that vegetarianism does not ‘attain a certain level of cogency, seriousness, cohesion and importance’ to qualify as a philosophical belief.[6] By contrast, ethical veganism is sufficient to qualify.[7] The distinction was explained in Crossley Farms: ‘the reason for being a vegetarian (lifestyle, health, diet, concern about the way animals are reared for food and personal taste) differs greatly among themselves, unlike veganism where the reasons adopted appear to be largely the same (vegans simply do not practice under any circumstances of eating meat, fish or dairy products, and have distinct concerns about the way animals are reared) … The clear belief that killing and eating animals is contrary to a civilised society and also against climate control’.[8] I am uncertain that the Employment Tribunal’s reasons for this distinction are persuasive. The Tribunal declares a clear ‘cogency and cohesion in vegan belief’, but the two reasons they provide for veganism (climate control and concerns for animal welfare) seem quite disparate, and there was little cited evidence establishing that these were the main reasons for vegan belief. Moreover, there was no indication as to why each ‘group’ of vegetarians could not qualify as an individual group with a sufficiently cogent and serious belief. It seems that anti-vaccination arguments could be phrased either way, by analogy to either case. Perhaps the Employment Tribunal will say that the reasons for anti-vaxxer’s beliefs are too many and varied to qualify as a philosophical belief, or, the court could argue that anti-vaxxers do not support vaccination for cogent reasons of, for example, autonomy and free will. We might wonder whether the decisive factor is going to be an intuitive preference, which is likely to be rooted in the majority opinion against the anti-vaccination argument.

If the previous requirement does not afford the courts a significant amount of discretion, it appears even more is created by the requirement that the belief is ‘worthy of respect in a democratic society; and, not in conflict with the fundamental rights of others’. Anti-vaxxers pose an obvious threat to the health and safety of others, and just as anti-vaxxers could argue that differential treatment based on vaccination status interferes with their right to equality, the rest of the population could argue that the threat posed interferes with their right to freedom to enjoy normal life or, even, their right to life. It seems here apt to mention that 89.3% of the population in the UK aged 12+ have received a first dose of the coronavirus vaccine.[9]  Thus, we can infer that a very large majority of the population do not support anti-vaccination beliefs. Without clear guidance as to what it means to be ‘worthy of respect in a democratic society’, it seems likely that majority opinion, as well as the seriousness of the emergency, will exert a significant influence on the decision of a court or tribunal.

If the extent to which a belief is regarded as respectable in a democratic society does largely rest on the extent to which it is a majority opinion, the law is unprincipled. We must work to enunciate the meaning of ‘discrimination’ in the context of anti-vaccination beliefs, and back up any distinctions with principled normative analysis.  I propose that discrimination, in this context, occurs when a person is not allowed to hold and maintain their belief, or where their autonomy is so heavily restricted so as to be tantamount to a refusal of their ability to follow their belief. This is distinct from setting up requirements of access to a privilege, provided there is a minimum level of choice so as not to eliminate genuine autonomy.

The line between the two is, of course, not simple, and we must consider when a privilege is so fundamental to everyday life, or so important as a matter of principle, that restrictions on that privilege are tantamount to denying the person the right to hold their belief. For example, denying someone entry to their country of residence because of their vaccination status (if, let’s say, they left before the pandemic, or prior to the news of vaccine restrictions) is such a fundamental privilege so as to be tantamount to denying the individual the right to hold their anti-vaccination belief. To consider how these distinctions might apply in practice, we can look at the issue of vaccine discrimination in the realm of employment. Referring to my proposition, I suggest that it is acceptable for employers to put thresholds in place for the enjoyment of the privilege of working (and thereby meeting their other liabilities as to health and safety), but it is not acceptable for employers to prescribe that the only way to meet this threshold is with vaccination. The right to work is a sufficiently significant and fundamental right that any vaccine mandate would eliminate genuine autonomy and choice to maintain one’s anti-vaccination belief. Whilst some prescription of the ways in which an employee can make themselves suitably safe to work is practically necessary, it seems important that employers provide a variety of methods of meeting this threshold, and that the anti-vaccination belief is accommodated. For example, the policy could allow either a vaccination or a recent lateral flow test.

To conclude, the Equality Act 2010 appears to leave much room for court discretion and for a tendency towards majority opinion. Thus, whilst there is some argument that anti-vaxxers hold ‘philosophical beliefs’ and thus have a protected characteristic, it seems more likely that discrimination against anti-vaccination beliefs will not lead to liability for discrimination under English law in this respect. I have proposed that “discrimination” in this context occurs when restrictions do not merely remove a privilege, but prevent the person from holding their belief or eliminate their autonomy. The line is blurred, but I have attempted to illustrate it by way of example in the context of employment. To bring clarity to the law, and to uphold the rule of law, it is advisable that the application of the Equality Act 2010 to vaccination is enunciated, defined, and supported by principle, rather than left to the discretion of courts and tribunals.