There has been much discussion in recent months about whether the government, and public or private sector employers, might have the right to make COVID-19 vaccinations mandatory. The UK government has now launched a consultation on proposals which would make COVID-19 vaccinations mandatory for staff working in care homes with elderly residents. This consultation is open until 21 May 2021 and is available here.

In the midst of this discussion, the European Court of Human Rights (ECtHR) has published its decision in Vavřička and others v. Czech Republic [2021] ECHR 116. In its highly topical judgment, the ECtHR held that a compulsory national childhood vaccination programme which imposed penalties for non-compliance did not, in the particular circumstances, violate human rights.

Background

The Czech Republic introduced a compulsory vaccination programme requiring children to be vaccinated against nine diseases. Financial penalties were imposed for non-compliance, and children who had not been vaccinated were excluded from pre-school. After being penalised for non-compliance with the policy, six individuals alleged that the mandatory programme was a breach of Articles 8 and 9 of the European Convention on Human Rights.

Article 8 – Right to respect for private and family life

The ECtHR found that the Czech national vaccination programme did interfere with the claimants’ Article 8 rights. However, on the facts, it decided that the interference was justified as a proportionate means of achieving a legitimate aim. In particular, it held that:

  • the Czech Republic had a legitimate aim in its desire to protect its population against serious disease;
  • in the circumstances, the relevant vaccinations were known to be safe and effective; and
  • the vaccination policy was proportionate – the fines were not excessive and non-vaccinated children were not prevented from attending once they reached the mandatory school age.

Article 9 – Right to freedom of thought, conscience and religion

The particular claimants had not objected to vaccination on the grounds of religion. The ECtHR therefore considered whether their right to freedom of thought or conscience was protected. In the circumstances, it found that the claimants’ beliefs lacked sufficient cogency to be protected under Article 9.

Implications

Although this case is particularly interesting given the current background, the decision was highly fact-specific, concerning tried and tested vaccinations against long-standing diseases. It does not give the green light for national governments to make COVID-19 vaccinations compulsory, let alone for employers to make vaccination a condition of employment. Whilst those steps may be possible, there are many factors that employers will need to take into account before deciding whether to mandate vaccination as a condition of employment.