A handful of UK firms have recently announced intentions to cut sick pay for unvaccinated employees, however, employment lawyers are warning that this may not technically be legal. Recent action by Next, Ikea, Morrisons and Ocado, who have all changed their sick pay policies for unvaccinated staff, have left employees feeling concerned. The companies have stated that they will continue to pay full sick pay to unvaccinated workers if they test positive for the virus. During these unprecedented times, companies are in a tricky position where they have to balance employee and shareholder needs to Reduce Sick Pay.
Employment lawyers have questioned the legality of changes that could mean unvaccinated staff lose out on sick pay, warning that these policies could initiate a host of lawsuits. Unvaccinated staff who are isolating could now receive the Statutory Sick Pay minimum, which is as little as £96.35 a week – unless there are mitigating circumstances.
What Are Your Sick Pay Rights with Coronavirus?
Statutory Sick Pay (SSP) is the minimum amount employers must pay, however, some employers offer company or contractual sick pay.
Particularly after nearly two years of the pandemic, some employers are struggling with significant staff absences because of the large case numbers, and may want to take steps to reduce unvaccinated employees amongst their workforce.
What are the Current Covid Isolation Rules?
Currently, individuals who are vaccinated are not necessaril required to self-isolate if they live in the same household as someone with Covid. Meanwhile, those who are not vaccinated must self-isolate if they live in the same household or are in close contact with someone with Covid.
Currently, vaccinated and unvaccinated individuals can release themselves from self-isolation after five full days if they have two negative lateral flow tests. However, this only applies in cases where self-isolation is required because they have tested positive for Covid-19.
Could Cutting Sick Pay for Unvaccinated Staff be Considered Discriminatory?
Unvaccinated employees have a higher chance of having to self-isolate and so would be impacted by a reduction in sick pay entitlement. Employees may opt not to be vaccinated because of health reasons, because they are pregnant, or because of their religious or philosophical beliefs. Additionally, research has also shown that, statistically, those from BAME communities are more likely to refuse to be vaccinated or show vaccine hesitancy.
Therefore, not paying company sick pay to those who are unvaccinated, in instances of self-isolation, especially where this has previously been paid, could amount to indirect discrimination on grounds of age, disability, bleief, pregnancy or race – all protected characteristics under the Equality Act.
Employers opting to go down this route would need to take into account any extenuating circumstances and be aware of the fact that it may be necessary to recognise existing sick pay entitlement in certain cases. Therefore, employers thinking about reducing unvaccinated employees’ sick pay entitlement will need to approach this on a case-by-case basis.
Reduction of sick pay is problematic from an employee perspective, including the potential for employees to come to work whilst unwell to avoid a reduction in their pay.
Employers looking to make changes to their sick pay terms should also consider existing contractual provisions.
Other Issues Which May Affect Sick Pay
It has become increasingly common for firms to exclude dangerous sports and elective surgery from enhanced sick pay schemes, HR needs to be prepared for any conflict this might cause.
Employers excluding unvaccinated employees from enhanced sick pay could lead to employees trying to discover which of their colleagues are unvaccinated, or could lead to other issues around whether behaviours, such as alcohol consumption, accident from a sporting injury or smoking could be reason not to receive company sick pay.
How Would Cutting Sick Pay Affect Company Culture, Reduce Sick Pay?
Outside of the legal context of cutting sick pay, cutting pay for unvaccinated employees could have wider consequences.
In the longer term, an organisational culture that is inclusive and based on trust is important to promote employee engagement. The role of an employer should be to support and educate staff to make informed decisions about vaccinations and to encourage an open conversation.
A recent survey from the Chartered Institute of Personnel and Development divulged 62% of employers think the Statutory Sick Pay rate to be too low and, therefore, should be increased. In which case, a more generous statutory sick pay allowance would help to assist people having to self isolate as well as their employers, who are having to make difficult decisions during a staffing shortage setback.
It could be considered beneficial for employers to undertake a review of their workforce to discover those who are not vaccinated against Covid-19 to make a well-informed decision.
So, whilst it is possible for employers to reduce sick pay for unvaccinated staff, it would be prudent for employers to seek legal advice. Employment lawyers, didlaw, can provide high-quality legal advice & representation as leaders in disability discrimination law & mental health at work.