Sick pay cuts for unvaccinated staff

Tom Evans, head of employment at DTM Legal talks us through the decison of some businesses reagrding sick pay and Covid vacinations…

January has seen numerous businesses take the decision to cut sick pay for unvaccinated staff who are forced to self-isolate.  The media has reported that such decisions have been taken by Wessex Water, Ikea and Next.

The employers referred to above pay workers a period of enhanced contractual sick pay when they are absent from work due to sickness.  They have taken the decision to cut sick pay to Statutory Sick Pay only for unvaccinated staff who are forced to self-isolate.  Employers have reported that they are taking this decision due to the large number of employees who are absent from the workplace due to the rapid spread of the Omicron variant.  Self-isolation guidance for vaccinated people has been relaxed twice in recent weeks such that they are now able to isolate for only five days as long as they test negative on days five and six.  They do not have to isolate if they are a ‘close contact’ of a person who has tested positive for COVID-19.  In contrast, unvaccinated people need to self-isolate for ten days if they either test positive for COVID-19 or are a ‘close contact’ of someone who has.*

In most cases it is reported that these employers will still pay enhanced contractual sick pay to unvaccinated staff who are absent due to having tested positive for COVID-19 and those who have not been vaccinated due to mitigating circumstances (such as pregnancy or on medical grounds).

It is advisable for employers to tread carefully before taking the decision to cut sick pay under these circumstances.  Employers should consider what has been contractually agreed in relation to contractual sick pay and also whether there is any custom and practice of making such payments under these circumstances.  The likelihood however is that there will be no contractual obligation to pay contractual sick pay to an employee who is self-isolating if they are not sick.  It is also important for employers to apply the decision not to pay full contractual sick pay on a case-by-case basis, taking into account mitigating circumstances relating to a worker’s decision not to be vaccinated, in order to reduce the risks of discriminating against a worker under the Equality Act 2010.

information correct as at 14 January 2022.

Tom Evans:Tom is head of employment at DTM Legal. He advises commercial clients and senior executives on bringing and defending employment tribunal claims, including assessment of merits, tactical decision making, negotiation of settlement and employment tribunal representation.