Can employers adjust sick pay for unvaccinated workers?

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Can employers adjust sick pay for unvaccinated workers?

There has been a lot of media coverage recently about various companies who are reducing sick pay for unvaccinated staff who are absent from work due to self-isolation.

In this article, we look at this in more detail and ask whether this is lawful in practice.

What’s happening?

Retailers Next and Ikea are the latest companies to announce that unvaccinated staff who need to self-isolate due to exposure to COVID-19, will receive SSP (statutory sick pay) and not company sick pay.

Both retailers have stressed that they will continue to pay unvaccinated staff in full if they test positive for COVID-19.

What is self-isolation?

Self-isolation is where someone must not leave their home where they have, or may have, COVID-19 symptoms. This includes going to their place of work and employers must not instruct their staff to break the rules of self-isolation.

If an employee needs to self-isolate, they can work from home where possible. They may (with their employer’s agreement) take some annual or unpaid leave or they will be placed on sick leave for which they are entitled to sick pay in accordance with their contract of employment. Usually, this will mean they are entitled to at least SSP.

Why is the self-isolation period suddenly relevant to the vaccinated versus the unvaccinated?

Currently individuals are required to self-isolate under the following circumstances:

Self-isolate straight away and get a PCR test (a test that is sent to the lab) on GOV.UK as soon as possible if you have any of these 3 symptoms of COVID-19, even if they are mild:

  • a high temperature
  • a new, continuous cough
  • a loss or change to your sense of smell or taste

You should also self-isolate straight away if:

(www.nhs.uk)

The advice NOT to self-isolate usually applies under the following circumstances:

If you live with or have been in contact with someone with COVID-19, you will not need to self-isolate if any of the following apply:

  • you\\\\’re fully vaccinated – this means 14 days have passed since your final dose of an approved COVID-19 vaccine
  • you\\\\’re under 18 years old
  • you\\\\’re taking part or have taken part in an approved COVID-19 vaccine trial
  • you\\\\’re not able to get vaccinated for medical reasons

Even if you do not have symptoms, you\\\\’re strongly advised to:

(www.nhs.uk)

As you can see, there is a difference in the requirement to self-isolate for those who are unvaccinated versus those who are vaccinated. This has prompted some employers to reduce the sick payments to unvaccinated staff. **

Is this lawful?

It is important to remind ourselves here that statutory sick pay (SSP) is a statutory payment. Hence if a member of your staff is instructed to self-isolate and would meet the eligibility required for SSP, you are not advised to withhold this payment. By doing so, not only are you breaking the law but this may prompt your employee to return to work when they should not, and this places your workplace at risk.

In the cases that are hitting the press, the sick pay reductions apply to company sick pay. Many smaller companies tend to offer SSP only but some do offer company sick pay as well. Company sick pay is payment for sickness absence at full pay, usually for a limited number of occasions in a 12 month period and it usually forms part of the contract of employment. It is the company sick pay that Next and Ikea have reduced for unvaccinated staff that do not have mitigation for not being vaccinated, such as a disability.

If you are considering removing company pay for those who need to self-isolate, what is your legal risk?

Company sick pay is contractual. To simply stop paying it would lead you open to claims of a breach of contract first of all.

This may also put you at risk of a constructive dismissal claim and, if the employee has genuine mitigation for not being vaccinated, such as a medical reason linked to disability or pregnancy- you are at risk of claims for discrimination- these claims are uncapped!

So, if you are looking to vary your company sick pay policy, you need to take advice from us but you should also consider whether a proposal such as this is going to generate more problems that it is aiming to solve. However, here at Avensure we can discuss this with you in more detail to help you to weigh up your options.

Are there any occasions when an employer could withhold statutory sick pay?

The employer can withhold SSP if they think their employee’s sickness absence is not genuine.

As we’ve said, SSP is a statutory payment- so you wouldn’t be advised to just withhold the SSP, instead you should investigate the issue with the employee having sought our advice. That way you can show that your decision not to pay SSP was a reasonable and fair one.

Similarly, whether someone is self-isolating or not, they must follow your absence reporting procedures and report their absences appropriately. If they do not, their absence is likely to be classed as unauthorised for which they are not entitled to pay. Again, you need to seek our advice if you are intending to withhold any payments from any employee.

**Please note, the content of this article is for guidance only. Any advice with regards to public health or medical matters should be directed to the appropriate organisations or persons.

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