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Can an employer ask about the vaccination status of a job applicant?

We have recently had a number of enquiries about whether job applicants can be asked to confirm their vaccination status when applying for a role.

The Equality Act 2010 prohibits employers from asking job applicants questions about their health before they are offered a job. This is to prevent employers from discriminating against a prospective employee by rejecting them because of a disability.

The Equality Act 2010 does not however go into detail about questions relating to the health of a job applicant and what this might include.

There are exceptions to this rule for example, where the employer’s purpose for asking about the applicant’s health is to confirm whether the applicant is able to carry out a task that is intrinsic to the work concerned. For example, ensuring that the applicant would be able to operate specialist machinery and of course in a care home setting where it is illegal to employ someone who has not been vaccinated.

As the position is still currently unclear on whether questions about vaccination status would be prohibited by law, we recommend that you avoid asking questions at interview stage. Once the applicant has been offered the role you can of course ask questions about their health by asking the applicant to complete a medical questionnaire. The medical questionnaire can then include questions about the employee’s vaccination status.

Consider making a conditional offer

We recommend that you consider making the offer of employment conditional upon receipt of a satisfactory medical questionnaire response to include the employee providing proof of vaccination if the role requires the employee to be vaccinated.

The government has confirmed that it will not take action to prevent this approach by employers.

Points to note

It is important to remember that job applicants have the same protection as employees against discrimination so approach the matter with the same caution as you would for an existing employee.

Be mindful that even in sectors such as the care sector where vaccinations are due to become mandatory, there are people who are clinically exempt from the requirement to have the vaccination.

If you are considering recruiting for a role that requires the successful candidate to be vaccinated, to mitigate any claims of disability discrimination, ensure that any requirement is specified in job adverts clearly stating that those exempted from vaccination will not be excluded. 

You will also need to consider data protection requirements when processing data in relation to vaccination status of applicants.

Having a requirement to be vaccinated may cause delays in the recruitment process and could possibly discourage suitable applicants from applying. We recommend that you consider making it a requirement only if really necessary for the role, for example where the role requires frequent travel overseas.

If you are considering whether to implement proof of vaccination as a requirement for a role and are unsure about how to put this into practice or wish to ensure that you mitigate any risk of discrimination, please contact a member of our team who would be happy to assist you. 

Photo by Jeremy Bezanger on Unsplash

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

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