Nathan May is a Solicitor at specialist employment law firm, Collingwood Legal. Nathan May considers the implications of changing an occupational sick pay policy for unvaccinated employees.
COVID-19 has required employers to balance the impact of the Pandemic on their employees alongside the impact on their business. Managing sickness absence and sick pay has been one key issue, as days lost not only due to illness, but also as a result of periods of self-isolation, will have significantly increased. The rules surrounding self-isolation are now less strict with “double-jabbed” employees not required to self-isolate unless they test positive or have symptoms. However, unvaccinated employees, who are a “close contact” of someone who tested positive for COVID-19, are still required to self-isolate.
Probably in response to this, notable businesses, such as IKEA and Morrisons, have decided to cut occupational sick pay for unvaccinated employees who have to self-isolate. How a company chooses to deal with this, will be a business sensitive decision that requires an analysis of the pros and cons.
The terms of an Occupational Sick Pay (OSP) Policy
The first consideration should be to consult your OSP policy.
For some employers, OSP will be a contractual entitlement, while for others, it will be discretionary. Considering the former, some policies may be drafted in such a way that “self-isolating” will not amount to “illness” and therefore not attract OSP. In such circumstances, the employee may only be able to claim SSP. However, during the height of the Pandemic, many employers either formally changed or informally adopted practices where those who were self-isolating were paid full OSP, regardless of their vaccination status. In such circumstances, it is arguable that an employee could bring a breach of contract and/or unlawful deductions from wages claim(s) should employers seek to unilaterally change the position and stop paying OSP to non-vaccinated employees who are required to self-isolate.
Discrimination and withholding sick pay
Another consideration when looking at changing how OSP operates is to ensure that such change does not discriminate unvaccinated employees. A broad brush approach, where all unvaccinated employees are treated in the same manner, could be risky as some individuals will be medically exempt from being vaccinated or may have other valid reasons for not being vaccinated. Data also suggests there is vaccine hesitancy in certain ethnic groups and in women looking to conceive. Any failure to consider this could expose the organisation to claims of discrimination.
While employers may be able to justify such a policy as a proportionate means of achieving a legitimate aim, the risk of such claims should not be ignored.
Is it worth bringing in this change?
Aside from risks surrounding contract changes and discrimination, there is also the issue of how employers will gather information about their employees’ vaccination status. Clearly if operating a different OSP scheme for unvaccinated employees, it will require the gathering of data about all employees’ vaccination status. This information would amount to special category data which attracts a higher degree of protection and can only be processed in limited circumstances.
Before changing any OSP entitlements, it may also be important to consider if such a change may involuntarily risk discouraging unvaccinated employees from testing themselves or self-isolating if they cannot afford time off work on SSP. The impact this could have on the wellbeing of the workforce as a whole could be more costly than the potential OSP saving(s).
The imposition of such a policy may be justifiable in some specific sectors but it is worth considering whether there is a need to make such a differentiation, especially as the Government has announced that they are considering removing the requirement to self-isolate altogether, even for individuals who are COVID-19 positive. Collingwood Legal is a specialist employment law firm and we provide expert advice to organisations on all areas of employment law, including COVID-19 queries. To find out more, contact Nathan May at Nathan.May@collingwoodlegal. com, or call 0191 282 2872. www.collingwoodlegal.com
