Employers cutting sick pay for unvaccinated staff

21/01/2022

ayLast week, Ikea slashed sick pay for unvaccinated staff who are required to self-isolate because they have been exposed to Covid. Following hot on their heels are Ocado and Next, with the list of companies taking this stance growing.

Essentially, unvaccinated staff who are obliged to self-isolate because they have been in close contact with someone who has tested positive will only receive statutory sick pay (SSP). There is some wriggle room here if the worker can provide ‘mitigating circumstances’.

Case by case assessment

Ikea and other firms are saying they will treat each case on its own merits, but this is likely to be an extremely time-consuming exercise. Particularly for larger companies with more of their workforce being unvaccinated. From an employment law perspective, there is also the issue of consistency. If employers are doing things on a case-by-case basis, they still need to treat cases in the same way. This ensures workers are not put at a disadvantage.

This risk is increased where unvaccinated workers who believe they have been disadvantaged by the policy can identify one of the ‘protected characteristics’ under the Equality Act that applies to them. Religion, pregnancy, a philosophical belief against vaccination or race may be relevant here, and in those cases an employer would have to objectively justify their policy.

The subject of vaccination is a hot topic, and the debate polarises opinion. It’s the sort of thing that gets discussed in staff rooms over lunch break with people on both sides of the argument, often using emotive language. Employers should be aware that the balance could start to tip towards harassment. A worker who takes a particular standpoint might feel aggrieved if they are being repeatedly verbally attacked by their colleague, for example. 

Covid positive

However, there is some good news. Companies will continue to pay full sick pay to those same unvaccinated workers if they test positive for the virus. But why the distinction?

This is probably because whether workers are vaccinated or unvaccinated, if they test positive for Covid and have to self-isolate, from a purely business perspective, the employer is not incurring any additional cost simply because of that individual’s personal choice.

However, when it comes to close contact, and workers are fully vaccinated, they can still come into work and do their job. So covering company sick pay is not needed. But for those who are unvaccinated and have to self-isolate because they’ve been ‘pinged’, providing company sick pay is an additional cost. Being unvaccinated therefore increases the costs to businesses if they have to cover company sick pay.

Case law

That said, there is established case law on that point which says that costs alone are not enough, and businesses cannot discriminate merely because it saves them money. Cost alone is unlikely to be sufficient objective justification, but costs plus an additional factor might be justifiable. One of those things could be disruption to the workforce. It’s less likely there will be disruption if the workforce is largely vaccinated because they can still come to work. The argument here would be about implementing a policy that incentivises the workforce to get vaccinated, minimising business disruption.

Also, if businesses run a health and safety argument as objective justification, it risks incentivising the wrong kind of behaviour. It could encourage employees who have to self-isolate to lie about the reason they are absent from work, or employees turning up for work when they should be self-isolating because they can’t afford to be on SSP.

Because most company sick pay schemes are discretionary rather than contractual, the changes do not necessarily require changes to workers’ contracts. But it may be sensible to go back and look at exactly what is in a worker’s contract, and how your current company’s sick pay policy has been framed.

More information

For more information please contact our employment team here.

21/01/2022

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