Does no jab mean you should receive less sick pay?

An increasing number of companies believe so, including a number of household names like Morrisons, Wessex Water and now IKEA.

In August 2021 the Government changed the self-isolation guidance for England, creating a distinction between those who are vaccinated and those who are unvaccinated. For those who are vaccinated (currently defined as double jabbed but likely to be expanded to those who are ‘boosted’ also), if they come into close contact (which has a specific definition as set out in the guidance) with someone who tests positive for Covid, they are not required to self-isolate (assuming they have no symptoms) although there is a ‘strong recommendation’ that they take daily lateral flow tests (LFT) (please read here for more information). However, for those who are not vaccinated, they are required to self-isolate if they are informed by test and trace that they are a contact of someone who has had a positive LFT and PCR.  This is replicated in Wales and Scotland the position is similar save that non isolation requires triple vaccination and a negative LFT for 7 consecutive days.

In the light of that change in guidance, IKEA has updated its sickness absence policy to say that unvaccinated employees, without mitigating circumstances, who have been identified as close contacts of a positive Covid-19 case will only be paid statutory sick pay (currently £96.35 a week) (SSP) during the required self-isolation period. This will apply to employees who:

1. are not vaccinated against Covid-19;
2. are not medically exempt from being vaccinated; and
3. are identified as a close contact of a positive Covid-19 case, but do not themselves test as positive for Covid-19.

Is this lawful?

There are a number of risks that employers face in introducing such a policy including but not limited to the following:

1. careful consideration should be given to the existing absence policy on pay and whether or not a ‘custom and practice’ has been created by past practice that amounts to an implied term that contractual ‘sick’ pay will be paid to those who are well but are required to self-isolate because they are unvaccinated; a unilateral change to any such implied term or other ‘right’ to pay if ‘forced’ to be absent, may amount to a breach of contract by the employer;
2. unvaccinated employees may assert that they are suffering a ‘detriment’ by not being paid when the Government requires them to self-isolate, because of a ‘protected characteristic’ (age, sex, race, religion or belief etc), protected under the Equality Act 2010 (EQA), or something arising from such a protected characteristic (for example, pregnancy, breast feeding, a philosophical belief against vaccinations, or something arising from an alleged disability such as trypanophobia (a morbid fear of needles)). There is currently no case law on vaccination refusals on such grounds and whether or not the EQA protections would result in successful discriminatory claims, but with an increase in differential, less favourable treatment for those who are unvaccinated, it is likely that such claims will be brought;
3. the law of unintended consequences.  If an unvaccinated member of staff knows they are not going to be paid if they are a close contact of someone who tests positive, they are less likely to disclose that fact and less likely to use the Test and Trace App;
4. data protection considerations. Any such policy is going to require ‘proof’ of vaccination status and the processing of that sensitive personal data which will require amendments to data privacy policies and contracts to require such disclosures to enable such policies to be administered.

Comment

There is a marked increase in the ‘nudge’ steps being taken by employers to ensure staff are vaccinated (including ‘no jab, no job’ and prohibitions from attending the office workplace if unvaccinated) and this is a development of those ‘nudges’. It is inevitable that cases will be brought by an increasing ‘ground swell’ by employees who have to date chosen not to get vaccinated; those cases will turn on their specific facts but it is likely that they will all involve a balance between the impact on the individual and the justification advanced by the employer for the policy introduced. In the circumstances, an employer must be robust in its rationale and have acted reasonably in the manner in which it responds to objections.

If you have any queries about this topic, please contact Elliot Francis or any member of the Employment team.

 

 

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