Covid vaccinations – how should you treat unjabbed staff?

Jabbed or unjabbed – how should employers treat their staff over sick pay in order to ensure not only continuity of business but also safety for all?

The national media has been full of the debate, with major employers taking contradictory positions.

At the time of writing it has been reported that, unjabbed employees at companies such as Morrisons,  who are told to isolate, will only be paid statutory sick pay (SSP) of £96.35 a week – unlike their vaccinated colleagues who will get full pay.

Meanwhile, John Lewis has stated its view that it is wrong to cut sick pay for un-jabbed staff. The national retailer takes the view, without wanting to judge anyone on this issue, that all its staff are entitled to full sick pay for Covid-related absences, regardless of vaccination status, and that it considers it would not be “right” to differentiate.

As staff absence rates have been soaring, employers have looked to tighten up their sick pay policies.

What is contractual sick pay?

There are two main types of sick pay: statutory sick pay (‘SSP’) and contractual sick pay.

SSP is operated under a statutory scheme and entitles certain staff to a payment if they are sick, subject to the staff member meeting the relevant eligibility criteria.

Contractual sick pay isn’t something an employer is required by law to pay, however lots of employers offer this benefit to staff as a term of their contract. It is common to see such schemes as the statutory scheme financial payments are limited. Depending on the wording of the term and other factors it may also be open for a company to change these terms.

Can an employer withhold sick pay from an employee who refuses to be vaccinated?

Setting what the law says aside for a moment, perhaps the bigger issue for employers to consider may be the medium to long term impact of a decision to pay only basic statutory sick pay of £96.35, both in terms of employee relations but also public relations – where your business is customer facing. Furthermore it is already reported that many organisations are having problems with recruitment and such policies may further exacerbate these problems.

Are we able to withhold sick pay for an employee with Covid-19?

It may be difficult for an employer to withhold either statutory or contractual sick pay from an employee who has refused the vaccine and contracted COVID-19. While some employers may have made contractual provision limiting an employee’s sick pay to SSP where their sickness or incapacity is due to their own recklessness, it seems unlikely that such a clause would sufficiently cover this situation.

Company sick pay schemes are likely to have contractual force, and often allow for employees to receive sick pay regardless of the reason for their illness.   Some employers may express their company sick pay as being “discretionary” and in this case the risk of a successful contractual claim if the employer chooses not to pay sick pay to its unvaccinated staff may be reduced. There could however be discrimination, human rights and other arguments about this and failure to pay this may also be controversial from an employee relations angle.

Furthermore, the reason an employee has become ill does not affect their entitlement to SSP.

Withholding sick pay for a self-isolating employee

The position regarding sick pay may be different during a period of self-isolation where the employee is asymptomatic. While such scenarios are covered by the SSP scheme, they may not be covered by a company sick pay scheme and as the employee is not actually ill in this scenario, the employer may have more flexibility as to whether they have to pay it, especially if any entitlement to contractual sick pay was expressed to be discretionary.

Why could discrimination be an issue if we withhold pay?

It could be that applying such a policy is indirectly discriminatory or amounts to discrimination arising from a disability.

So, for example if someone refused to be vaccinated because of their disability, it could be indirectly discriminately not to pay that individual full pay like other staff members. The staff member would have to show, amongst other points, that this policy puts people who are disabled at a particular disadvantage compared to others and puts that particular staff member at a disadvantage.

Equally if someone is treated less favourably because of something arising from their disability e.g. an inability to be vaccinated because of their disability, this could be discriminatory.

A company can avail themselves of a defence to such claims however if they can show their actions are a proportionate means of achieving a legitimate aim. It is likely therefore that this defence will become a key point of contest in tribunal cases over the course of the next few years.

One point that seems certain is that this is likely to be a highly contentious area and employers will want to take extra care that they understand the intricacies associated with this area and mitigated their risk wherever possible.

For advice contact our Employment Law Solicitors on 0345 20 73 72 8 or info@thursfields.co.uk

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