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Can no jab mean no ‘sick’ pay?

9th Feb 2022
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With all the stories in the press and headlines reporting that yet another company is ‘withholding’ sick pay for unvaccinated staff, what is the legal position for employers that choose this path?

Current rules

For those who have received the Covid-19 vaccine, there is no longer a requirement to self-isolate where they have been in contact with a confirmed case of Covid-19. Instead, they are advised to carry out daily Lateral Flow Tests (LFTs) for 10 days from the date of the contact and to isolate only if they develop symptoms or test positive on an LFT, or both. 

However, those who have not been vaccinated are required to self-isolate for the full 10-day period following contact with a confirmed case of Covid-19. In this case, at present, they would be entitled to receive statutory sick pay (SSP) as they are isolating in line with the regulations.

Firms cutting sick pay for the unvaccinated

A growing number of companies have announced that unvaccinated employees will no longer be paid company sick pay, unless they personally test positive for Covid-19 or have symptoms which mean they are unable to work.

Many press reports state these companies are ‘withholding sick pay’ from employees.  However, this is not altogether surprising; before Covid-19, company sick pay would not usually have been paid to staff who are not actually unwell.

This situation is not about staff who have symptoms or test positive for Covid-19. This is about those who are otherwise completely fit and well but are not able to work purely because they are required to isolate due to their vaccination status.

For the last 18 months, many companies have agreed to pay company sick pay where staff are required to self-isolate, even where the employees in question have not been unwell.  This has been fuelled by the unique circumstances of the pandemic which meant large numbers of people have had to remain away from work, despite being well, because that was the legal requirement for anyone who had been in contact with a confirmed case of Covid-19. 

However, following the hugely successful vaccine rollout, that is no longer the case. Instead, it is only the unvaccinated who have to isolate - those who are vaccinated can attend work as normal. Many employers are therefore taking the view that if employees have made a choice not to be vaccinated, they should no longer benefit from these enhanced sick pay terms, at a substantial cost to the employer.

Other circumstance where company sick pay is not paid

It is also worth noting that there are already a number of other circumstances where company sick pay is sometimes not paid to employees who are off work because of a personal choice they have made.

For example, company sick pay is often not paid to staff who have elective surgery or become injured after participating in extreme sports. These employees are still entitled to receive SSP if they can’t work, but company sick pay would not be paid as the situation leading to their non-attendance at work is the result of a personal choice. The same could be said to be true of staff who have made the choice not to be vaccinated against Covid-19.

Are employers taking a risk with this approach?

So, is this something that employers can do, or is there a risk in taking this approach? That really depends on the specific circumstances relating to each individual employer, and the particular employee in question.

It could, in some cases, amount to a contractual change.  In such cases, if employers don’t follow the appropriate procedures to implement that change, it could lead to claims for unlawful deductions from wages, breach of contract or even constructive unfair dismissal. 

Equally, there is invariably a risk of discrimination claims arising if such a policy is not implemented in an appropriate way. For example, if an employee has chosen not to be vaccinated due to religious reasons, such a policy could lead to claims for indirect discrimination. Similarly, if an employee who has a disability – but who is medically able to have the vaccination – has for reasons related to their disability chosen not to do so, it could lead to claims of discrimination arising from disability or failure to make reasonable adjustments.

No one size fits all

The devil, as always, is in the detail. There is no ‘one size fits all’ and employers are advised to seek legal advice on the detail of their individual policies if they wish to stop paying company sick pay to unvaccinated staff in these circumstances.

And as with everything arising from the Covid-19 pandemic, this is a constantly evolving situation, and it remains as important as ever to keep up to date with changes in the law.

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