The High Court judgment of Justice Cooke in Yardley v Minister for Workplace Relations^[1], held that the Government’s requirement for New Zealand Police and Defence Force workers to be vaccinated under the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (Specified Work Order) was unlawful because it was an unjustified limit on the right to refuse medical treatment and the right to manifest religious beliefs under the New Zealand Bill of Rights Act 1990 (BORA). See our article here.

Many employers in the public sector, local authorities and private businesses across New Zealand have been requiring employees to be vaccinated to carry out their roles or enter premises, either under Government vaccination mandates or internal employer policies, often referred to as “no jab, no job” or “no jab, no entry”. Many employees have had their employment terminated for not being vaccinated under a vaccination mandate or policy. The Yardley decision is significant and employers should consider its impact on any vaccination policy it has in place and employment processes currently underway.

Specified Work Order was not for public health reasons

Internal vaccination polices require vaccination on the basis of a risk assessment carried out under the Health and Safety at Work Act 2015 and to protect against infection and transmission of Covid-19. Similarly Government mandates introduced under COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccinations Order), were imposed for public health reasons in work forces such as health and education services.

The Specified Work Order considered by the High Court in Yardley was specific to New Zealand Police and Defence Force workers. The stated purpose of the Specified Work Order was not to prevent the spread of Covid-19. Instead, the stated purpose was to ensure the continuity of public services, and to promote public confidence in those services. At the time the Specified Work Order came into force on 16 December 2021, and when it was being promulgated, the Minister for Workplace Relations and Safety had received advice that further vaccine mandates were not needed for health reasons.

Numbers of workers covered by the Specified Work Order

The Specified Work Order applied to all 15,000 Defence Force personnel and to 11,000 of the overall 15,000 Police workforce. The remaining, largely non-sworn staff were covered by the Police’s employment policies.

As at 21 October 2021 83.1% of Police had received at least one dose of the vaccination and 70.1% had received two doses. When the requirement to have received the first vaccine dose came into force under the Specified Work Order on 17 January 2022, there were 164 unvaccinated staff members who were stood down. On 8 February 2022, 60 staff were terminated (due to being unvaccinated) leaving 104 going through a consultation process.

For Defence, as at 1 February 2022, 99.2% of the regular forces were fully vaccinated leaving 75 members who were not. 98.7 % of the civil staff were fully vaccinated leaving 40 who were not. Defence also had an internal policy.

Challenge to Specified Work Order

The Specified Work Order was challenged in a number of ways, including that the Specified Work Order was an unjustified limit on rights in BORA. Those rights include the right to refuse medical treatment under section 11 BORA, which the Crown accepted was limited by the Specified Work Order, and the right to ‘manifest that person’s religion or belief in worship, observance, practice or teaching” under section 15 BORA.

A number of workers affected by the Specified Work Order challenged their terminations and filed affidavits referring to their fundamental objection to taking the Pfizer vaccine, given that it was tested on cells that were believed to be derived from a human foetus.

The Court accepted that an obligation to receive a vaccine which a person objects to because it has been tested on cells derived from a human foetus does involve a limitation on the manifestation of a religious belief in “observance, practice, or teaching” of religion contemplated by section 15 and that this was grounded “in a core principle of the particular Christian religion and the objection to abortion”.

Cooke J noted that the relevant belief must be Christian and not secular, and the applicants had to demonstrate that they sincerely believe that a certain practice or belief is required by religion, or that they believe it is required by the religion and it has the appropriate nexus with the religion.

Specified Work Order set aside

The High Court held that the Crown had not sufficiently demonstrated that in the current context of Covid-19, requiring mandatory vaccinations would meet the purpose of the Specified Work Order being ensuring continuity of services and promote public confidence. In particular:

• There was no evidence that the mandate would have increased vaccination rates any differently to those achieved under internal Police or Defence Force policy.
• There was no evidence that vaccination significantly reduces the risk of transmission of Covid-19 with the Omicron variant, and therefore the relatively small number of unvaccinated individuals would make no difference to the risk of widespread transmission throughout the services.
• While vaccination does provide protection from serious illness, there was no evidence that the remaining protective effect would significantly contribute to maintaining the continuity of the services.
• That booster shots had not been mandated, as they had under the Vaccinations Order.
• Health advice to Cabinet indicated that further mandates were not required to restrict the spread of Covid-19.

The Court was therefore not satisfied that continuity of the services was materially advanced by the Specified Work Order. When weighed against the significant impact on individuals, which included permanent loss of job and income, the Specified Work Order had an unjustifiably disproportionate effect.

Alternatives to dismissal for not being vaccinated

Cooke J held there were alternative lawful measures available to the Government which would have minimised the impact on individuals. This included using existing internal policies to deal with unvaccinated staff on an individual, risk-based basis. The Court noted that in using the mandate, no consideration was given to redeployment or suspension of employees, and termination was the only option utilised for a breach. Actions which infringe upon protected rights can only do so in a way which is the minimum required to implement the desired public policy outcome. Because options other than termination were available, this was therefore said to be a breach of the requirements under BORA. In particular, it was held that Omicron has a:

“relatively temporary but very significant impact. That is significant in my view. The major impact for a period of three to six months may need to be addressed. But the terminations arising from the Order are permanent. It may be that suspension of the unvaccinated address any potential problems arising from the Omicron wave that are identified. This would suggest the Order is not proportionate as other means (suspension) could have been employed to achieve the same end …”

The Court also noted, when commenting about vaccination requirements under internal policies, an employee’s individual circumstances could be taken into account:

“assessments could be made on whether the particular functions they undertook involved any significant risks to others. For example an assessment could be made on the extent to which the person had a public facing role, or interacted with other colleagues, or whether they could work from home”.

Interestingly, the High Court did not consider clause 3(4) of Schedule 3A of the Employment Relations Act 2000 (Act), which was introduced on 26 November 2021. This places a statutory duty on an employer to exhaust all reasonable alternatives that would not lead to termination of employment of an unvaccinated employee - whether this is under a vaccination mandate or an internal policy.

Comment

The High Court was very clear that the Specified Work Order, which was set aside, was not implemented for the purpose of limiting the spread of Covid-19. Accordingly, the Court’s comments about when an employee can raise an issue of being unable to manifest a religious belief due to a requirement to be vaccinated, may be limited in application.

At this stage, there is no indication of whether the Crown will appeal the Court’s decision. However this decision does put employers on notice that they will need to look at vaccine mandates and internal policies requiring vaccination, and ensure that, in the context of Omicron, and what we know about the efficacy of vaccines to prevent transmission, there is still justification for their continued enforcement. Employers who have based their decisions on careful health and safety risk assessments (under different Health Orders) may have grounds to distinguish this case and justify decisions to dismiss.

Where an employer is seeking to terminate employment, this will continue to involve an analysis on a case by case basis, of a number of factors including:

• can the employee work from home
• is suspension or leave without pay possible, taking into account, for example, whether it is reasonable to be unable to replace an employee if they are suspended/on leave without pay
• is the employee in a high risk role
• does the employee interact with the public/colleagues
• the vaccination rates of the rest of the workforce
• what is the updated science/advice from the Ministry of Health about whether vaccination prevents transmission and infection of Covid-19
• how long the Government’s vaccination mandates will be in force.

The position on mandatory vaccinations, either under a Vaccination Order or internal policy is evolving at pace. Please get in touch with one of our experts if you have any questions.