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Can employers reduce sick pay for their unvaccinated staff?

As two major companies in the South West announce a cut in sick pay for unvaccinated workers, employers considering a similar move are being urged to tread carefully.

Wessex Water, which employs more than 2,500 people, and Bristol-based retailer Ikea have both changed their policies for unvaccinated staff forced to self-isolate after being in close contact with someone with Covid.

Un-jabbed workers will now receive only statutory sick pay of £96.35 a week if they have to stay at home for this reason, unless certain mitigating circumstances and medical exemptions apply.

How have the self-isolation rules changed?

The move follows a recent change in the government’s rules on self-isolation. Fully vaccinated staff in close contact with someone with Covid can now come back to work as long as they test negative.

Wessex Water and Ikea say it is no longer fair to carry on paying unvaccinated people to stay at home while their vaccinated colleagues can return.

As intolerance towards the unvaccinated grows, and with intense pressure on staffing and costs amid the Omicron surge, more employers are expected to follow suit despite concerns it could lead to some employees choosing not to isolate when they should.

Is it legal to cut someone’s sick pay because they are unvaccinated?

Depending on individual circumstances it may be but this is a complicated area of the law which Wards Solicitors’ James Taylor, an employment law disputes specialist, spoke about recently on BBC Points West.

He says employers need to be aware of certain risks including:

  • Breach of contract – a contract of employment can only be changed according to its terms or with the agreement of both parties. When an employer fails to consult on proposed changes, or when the employee does not accept them, tribunal claims for unlawful deductions from wages, breach of contract or even constructive dismissal could follow.
  • Indirect discrimination – an employee might have a reason for not being vaccinated which could be what’s known as a ‘protected characteristic’ under the Equality Act 2010. This includes disability, pregnancy, religion, a philosophical belief or race. Employers must be able to objectively justify a policy of paying less sick pay to an unvaccinated member of staff as a proportionate means of achieving a legitimate aim. We understand that those with a medical reason for remaining unvaccinated will still receive full sick pay at these large employers. The employers in question clearly want to increase levels of vaccine uptake amongst their staff in order to minimise covid-related worker absence, and will have weighed up the risk of facing claims against the benefits to the business of lower absentee rates.

Get in touch

Partner James Taylor is highly experienced and part of Wards Solicitors’ specialist employment team which represents both individuals and businesses. This allows us to have a clear understanding of how to conduct and approach any dispute.

If you have any queries about this area of the law, please contact James:

  • Phone: 01454 204880
  • Email: James.Taylor@wards.uk.com

Alternatively, please contact any member of the Employment Team.

 

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    January 2022

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