Employers cut sick pay for unvaccinated employees

Holly Navarro Holly Navarro 18 January 2022

Two major UK employers, Ikea and Wessex Water, have implemented cuts to sick pay for unvaccinated staff without a valid medical reason who are forced to self-isolate due to exposure to coronavirus.

This tougher approach comes amid the current crisis caused by Omicron which has seen many firms, particularly those which are service-led and reliant on staff being in stores and warehouses, struggle with mass staff absences and rising costs.

Holly Navarro, trainee solicitor at Wake Smith looks at the potential legal implications for these policies?

There are two types of sick pay:

a) Statutory sick pay (SSP); and

b) Contractual sick pay.

SSP is governed by legislation and enables eligible employees who are absent from work due to incapacity to receive a weekly SSP payment.

In contrast, contractual sick pay is a discretionary payment typically contained in the employment contract and usually allows the individual to receive full pay.

It is the latter which some employers are removing for unvaccinated staff who are isolating due to Covid exposure and who are not medically exempt.

This means that the affected individuals will receive £96.35 per week (the current rate of SPP) rather than any enhanced sick pay which their vaccinated colleagues or those with a valid medical reason would receive.

It is worth noting that this policy doesn’t apply to unvaccinated staff who are isolating due to having symptoms or having tested positive for coronavirus. In these circumstances, they will still be entitled to contractual sick pay.

This move from Ikea and Wessex Water is the latest from a long series of varying attempts by companies to encourage their workforce to get vaccinated.

Many employers, such as Asda and Santander, are offering employees paid time off for vaccinations and last autumn United Airlines offered their staff an extra day of pay if they could prove their full vaccination status before 20 September 2021.

In contrast, Morrisons announced last October that any unvaccinated employee who has to isolate due to being a close contact of a Covid case will no longer be entitled to sick pay benefits.

Introducing a specific policy for unvaccinated members of staff is not without risk as employers may expose themselves to claims of discrimination.

Individuals who refuse to have the vaccine may be protected by the Equality Act 2010 on the basis of their religion, philosophical beliefs, disability or pregnancy.

To avoid legal risks, employers should always consider whether their actions are a proportionate means of achieving a legitimate aim, namely encouraging employees back into the workplace.

Human rights under the European Convention on Human Rights (which is unaffected by Brexit) may also be engaged with individuals arguing that their right to a private life or their right to freedom of thought, conscience and religion is infringed by this policy.

There is the additional risk that unvaccinated individuals will be reluctant to test themselves or even self-isolate when they should given the financial implications of only receiving SSP.

Employers need to bear in mind that, as with any other contract, they cannot unilaterally change the terms and conditions of employees’ existing employment contracts unless they can rely on an express term within. Otherwise, they will have to explore other ways to implement the change including seeking express agreement from the affected employees.

Since 11 November 2021, it has been a legal requirement for anyone who works or volunteers in care homes to be fully vaccinated unless exempt. Similar compulsory rules for frontline NHS staff are due to come into force in April of this year too.

Whilst these policies can be justified as being a proportionate mean of achieving a legitimate aim (making care homes and NHS venues as safe as possible for staff and the people they care for) the lawfulness of the policies introduced by the likes of Ikea, Wessex Water and Morrisons remains unclear.

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