Vaccination Mandate Overturned: Should Employers be Concerned?

In short – mostly there is no need to worry despite a High Court decision that ruled the Covid-19 vaccination mandates for the Police and Defence Force is to be set aside.

What was the issue?

The Court concluded the mandate placed unjustifiable limits on the applicants’ (Police and Defence Force personnel) fundamental rights, which are protected by the New Zealand Bill of Rights Act 1990.

The mandate potentially affected 279 unvaccinated personnel if they did not comply with the requirement to be double vaccinated. This number was significant in the decision. It was argued that the mandate not only limited the fundamental rights of those affected, but that the Government could not justify doing so in a free and democratic society which is a requirement of the Bill of Rights. The High Court agreed.

What rights were limited?

The High Court agreed with the applicants that the mandate limited the right of affected personnel to refuse to undergo medical treatment. Secondly, the mandate limited the right of affected personnel to ‘manifest their religion or belief in worship, observance, practice, or teaching’. However, this related only to the right of those who object to receiving a vaccine because it was tested using cells derived from a human foetus on religious grounds.  The High Court concluded the mandate doesn’t limit this right for people who object to the mandate because it is inconsistent with a manifestation of belief arising from the concept of “individual bodily integrity, personal autonomy or similar [religious] values”.

In some circumstances the government can limit rights that are protected under the Bill of Rights, for example the requirement to wear a seat belt or a cycle helmet. These limits on rights are lawful if they can be “demonstrably justified in a free and democratic society”.

Aren’t vaccine mandates for the ‘greater good’?

The mandate was not for the elimination of the spread of Covid-19, but to “ensure the continuity of services that are essential for public safety, national defence … and to maintain trust in public services”.  However, expert evidence said that although the vaccine could limit symptoms and hospitalisation rates, it was less effective in reducing infection and transmission. The judge agreed with the conclusion that the threat to the ‘continuity of services’ still existed whether or not people were vaccinated.

As the mandate only affected 279 out of 31,162 personnel, the judge found that the mandate on such a small proportion of unvaccinated staff would not make any material difference to the continuity of service of the maintenance of public trust.

The final conclusion the High Court reached was that the Police and Defence Force had their own  internal vaccination policies and requirements and there was no evidence that a mandate would increase vaccination rates, or that it was impractical to deal with personnel on an individual basis.

In summary the Court concluded that the limits placed on the applicants’ fundamental rights by the mandate were not demonstrably justifiable.

So, what now for employers?

Importantly the Court noted this decision is specific to the particular circumstances relating to the Police and Defence Force. Other mandates were implemented for different reasons. The decision also only applies to public policy decisions, i.e. those applied by government departments and ministries. The Court decision cannot be applied to private sector vaccine requirements.

The mandate was found to be unjustifiable on two grounds only. The Court rejected claims that the mandate also restricted the right to work, the right to be free from discrimination, and the protection of internal thought or belief.

This High Court decision does not change our advice. If there is a mandate in place you need to follow it. The potential financial consequences of not doing so are significant, and in your industry a challenge of the mandate’s justifiability may have a different outcome. If there is no mandate for your organisation, and you conducted a robust health and safety risk assessment, concluding vaccinations were required, then this can be a justifiable conclusion. We expect decisions from the Employment Relations Authority on this matter to be coming through in the next few months as this is a theme for many personal grievances.