Reducing sick pay for unvaccinated staff-can you do this?

At the moment, a lot of well-known companies are adopting a policy of reducing sick pay for unvaccinated staff who have to self-isolate due to being in close contact with someone who’s had a positive covid test. Ikea and Next are just two of the organisations in the headlines for deciding to go down the route of paying statutory sick pay (SSP), rather than full company pay, in such cases.

You might be wondering if this is something every business can do. You might also be wondering whether this approach can even be extended to include unvaccinated employees who are off with covid themselves. As you’d probably expect in these types of situations, the answer is rather more complicated than a straightforward yes or no.

What is the policy that these companies are adopting for reducing sick pay for unvaccinated staff?

The majority of policy changes have been connected to the requirement to isolate rather than when an unvaccinated employee falls ill with covid themselves.

If an employee’s informed by NHS Test and Trace that they are a contact of someone with a positive LFD or PCR test result, they are legally obliged to stay at home and self-isolate for ten days unless they are fully vaccinated, or unable to get vaccinated for medical reasons. As you’re probably well aware, an employee who has to self-isolate is entitled to statutory sick pay as a minimum even though they are not ill themselves, due to SSP rules being adjusted during the pandemic.

Quite a few companies have decided that reducing sick pay for unvaccinated staff without any mitigating circumstances, who are required to self-isolate due to close contact with a positive case will now only receive SSP rather than full company sick pay. Most companies are still giving full sick pay to unvaccinated employees who test positive for covid themselves.

There’s some variability about how employers are defining “vaccinated”. Some define it as two doses, or two doses plus booster; others are accepting one vaccination, or even just evidence of a vaccination appointment that was confirmed before the NHS notification of the need to isolate.

What risks are there to adopting this kind of policy?

Employers are looking at ways to protect their business from the ongoing fallout of the pandemic; it’s understandable that companies will be keen to see their employees vaccinated both to protect the individual’s wellbeing and those around them, as well as minimise the impact of covid on the business itself.

But equally, there’s no avoiding the fact that differentiating between employees this way can create problems – both in practical terms in the workplace and legally.

If you are considering reducing sick pay for unvaccinated staff, you need to check your employment contracts carefully. There could be a risk of breach of contract depending on how the terms relating to sick pay are set out. If company sick pay is discretionary, you could have more grounds to only pay SSP but even this should be approached with caution. That’s particularly true if you are considering whether to pay SSP in the event of an unvaccinated employee testing positive for covid. Both vaccinated and unvaccinated employees can catch covid so it isn’t possible to categorically say that the employee would not have had covid had they been vaccinated. There is a stronger argument for paying SSP in the event of having to self-isolate due to having been in close contact with a positive case; in this instance, it is clearer as it is the vaccination status that specifically determines whether an employee can or cannot attend their workplace.

Direct discrimination claims are a possibility depending on the reason for the employee not getting the vaccine. If an employee cannot be vaccinated due to being medically exempt or in relation to a protected characteristic, it would not be acceptable to apply a policy of reducing sick pay. Indirect discrimination claims present a risk too; for example, if the policy ends up disproportionately impacting employees from certain ethnic or religious groups.

So what should you do?

Think about whether a reduced sick pay policy can be justified on the basis of being a proportionate means to achieving a legitimate business need. While cost-saving, maintaining attendance levels and health and safety concerns could be argued to be legitimate needs, make sure you also consider what the counter arguments could be too. For example, a change in policy resulting in SSP being paid to unvaccinated employees who have covid could actually make them less likely to have mild symptoms tested as they don’t want to be off on reduced pay. As such, the policy ends up actually increasing the health and safety risk. So make sure your legitimate aim is robust.

Think about any other consequences too; is full company sick pay given to someone who has time off due to sporting injuries perhaps, or treatment as a consequence of smoking? Consider whether you risk any fallout from employees angry that sickness absence stemming from these activities would still be eligible for full sick pay while the choice to be unvaccinated results in sick pay reduction. Make sure you are prepared to deal with any such challenges.

If you believe that all considered it’s in your company’s best interests to pursue such a policy of reducing sick pay for unvaccinated staff, either just for self-isolation or actual sickness absence itself, ensure any policy changes are clearly and sensitively explained. It would be highly advisable to apply it very carefully on a case-by-case basis to minimise the legal risks. By taking employees’ unique circumstances into account, and by being able to show you have carefully assessed the impact on the individual, your business will be in a better position to defend itself if you are subsequently challenged.

Contact us if you need advice

If you would like expert guidance in managing this, or any other, HR situation then please do contact us. We provide highly flexible HR services, including ad hoc HR advice and retained HR services.

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