This year, in response to the high rates of workplace absence and associated costs triggered by the Omicron variant of Covid-19, many big names such as Morrisons, Next and IKEA were reported to be cutting Company Sick Pay for unvaccinated workers.
The decision caused much debate over its legality and morality, but with much of Europe becoming increasingly intolerant of unvaccinated individuals, it is expected that more companies may follow suit.
But is this approach without risk?
What are the Covid-19 rules for Statutory Sick Pay (SSP)?
An employee can get Statutory Sick Pay (SSP) if they’re self-isolating in relation to Covid-19, from day one, for any of the following reasons (in all instances different rules can apply for vaccinated and unvaccinated individuals):
● They, or someone they live with has Covid symptoms or has tested positive for Covid-19;
● They’ve been notified by the NHS or Public Health Authorities that they have been in contact with someone with Covid-19;
● Someone in their support bubble has Covid-19 symptoms or has tested positive for Covid-19; or
● They have been advised by a doctor or healthcare professional to self-isolate prior to going into hospital for surgery.
The Difference Between Statutory Sick Pay and Company Sick Pay
SSP is available to all qualifying employees, at the current rate of £96.35 per week, for up to 28 weeks. Company (or ‘Contractual’) Sick Pay, however, is what an employer chooses to pay their employees instead of, or in addition to, SSP. SSP requires the employee to be ill for four days before it is triggered (unless the illness is due to Covid-19), but Company Sick Pay entitlement will normally apply from the first day of illness/incapacity.
Note: The many reported big names opting to cut sick pay to unvaccinated workers, are choosing to cut Company Sick Pay, not Statutory Sick Pay. The latter remains a statutory entitlement and refusal to pay (unless certain conditions are not met) it would be unlawful.
Reducing Sick Pay – Important Considerations
While, in theory, employers can reduce Company Sick Pay for unvaccinated employees, doing so carries the potential for legal issues, particularly if handled incorrectly. Here are just four areas that employers should fully consider before opting for this approach.
Employee Rights
Employers considering reducing Company Sick Pay to unvaccinated individuals should approach it on a case-by-case basis. The alternative of issuing a blanket rule could potentially impact certain groups of the workforce and invite claims of discrimination.
Employees may choose not to be vaccinated for a number of reasons, such as pregnancy, religious or philosophical beliefs, or a clinical exemption that amounts to a disability, all of which are protected characteristics under the Equality Act 2010. Employers need to ensure that they have explored the reasons with the employee, as far as they can. A flat refusal by the employee to explain their reasoning, could result in it being justified to reduce Company Sick Pay.
Therefore, refusing to pay Company Sick Pay where it may have previously been paid to date, could amount to indirect discrimination on the grounds of protected characteristics such as age, disability, pregnancy, belief or race etc.
It is vital to analyse each case as it comes up and consider the factors behind an employee’s choice or requirement to remain unvaccinated, before making a decision.
Workplace Relations
Some employers consider reduced Company Sick Pay not only as a way to manage staffing issues and save costs, but also as a method of encouraging employees to get vaccinated.
The downside of the latter is that it can cause debate and even create a divide between the vaccinated and unvaccinated individuals in the workforce. Many feel strongly that vaccination is the right thing to do, while others feel strongly about the right to choose.
Additionally, differences in treatment of employees can inadvertently highlight who has been vaccinated and who has not – a status that some may prefer remained private, taking the employer into the complicated issue of its responsibilities to data protection.
Employee Motivations
In general, sick pay is triggered by ‘incapacity’ – the employee is too ill or injured to work.
As Covid-19 can present as a mild illness or even symptomless in some individuals, SSP rules were adjusted to allow for it to be triggered without the employee being unwell – the presence of a positive Covid-19 test was enough. Company Sick Pay generally remains triggered by incapacity.
Being that SSP is likely to be low in comparison to full pay, and Company Sick Pay doesn’t kick in without incapacity, it could be argued that there is an incentive for unvaccinated employees (should Company policy change) to deny Covid-related illness, attending the workplace when they are positive for the virus or at high risk, because they cannot afford to take the drop in pay that comes with self-isolation. At the time of writing there remains a legal requirement for anyone that receives a positive LFT or PCR to self-isolate; irrespective of their vaccination status.
Contracts of Employment
Company Sick Pay may be an entitlement in an employee’s Contract of Employment, so taking it away could amount to a breach of Contract. Any changes to the Contract would therefore need to be proposed and agreed with the employee, in advance of taking an action such as withdrawing Company Sick Pay.
As it’s unlikely that an employee would agree in advance to having money taken away from them, employers should check the existing Contracts of Employment to determine whether the Company Sick Pay policy has any discretionary terms already ‘built in’, that would permit them to make an alteration to how and when Sick Pay is issued.
Conclusion
So, while the answer is yes, employers can reduce Company Sick Pay (once the correct procedures have been followed) for unvaccinated employees, it can be morally tricky, and is most certainly a legal minefield that goes even further than what we have summarised here.
The responsibility is on the employer to consider the risks and determine and prove objective business reasons for justifying a reduction in pay.