Can an Employer stop contractual full sick pay for an unvaccinated employee who is isolating?
Wessex Water, Morrisons, Next and now Ikea have implemented a change to their sickness pay arrangements for unvaccinated staff who need to self-isolate because of Covid by reducing their sick pay entitlement in certain circumstances.
Where a member of staff meets the eligibility criteria for statutory sick pay (“SSP”) then SSP must be paid from day one of isolating if the period of incapacity from work is four days or more. See here and here for more details as such rights are based upon legislation.
Where an Employer has a sick pay policy that tops up SSP with additional sick pay to normally bring it to full pay then such a policy is likely to be contractual unless the policy states it’s non contractual discretionary payment.
Whether the policy is contractual or not, to change the policy unilaterally without the consent of those employees who are affected by it is not without its risks. Unvaccinated employees could argue breach of contract but also look to bring discrimination claims if they had a just cause not to be vaccinated based upon religion, belief, disability or potentially pregnancy.
Human Rights Law
Also, there is the added complication that Brexit may not apply to some human right matters, like the right to private life, freedom of thought and conscience under the European Convention on Human Rights thus, Employers could be open to potential claims under human rights law.
Without clear case law on the matter, there is uncertainty on whether Employers amending such policies without the agreement of unvaccinated employees would be lawful.
A key to resolution of such matters is meaningful consultations of all staff to which the policy applies to try to justify the business rationale as to why the change is required. For example, these employees would not have had to self-isolate had they been vaccinated thus the policy change is a proportionate means of achieving a legitimate aim of promoting higher rate of attendance at work where indirect discrimination could be alleged.
It would be prudent for Employers looking at changing such sick pay policies to seek HR support and guidance and look at having in place a vaccination policy.
The article is for general information purposes only and should not be relied upon as authoritative however should you require any further assistance on the matter, please do not hesitate to call our advice-line team on 01455 852028.
