No sick pay!
We analyse news that sick pay for the unvaccinated is pulled by some employers.
Ikea have recently made employment law headlines by announcing its decision to cut sick pay for unvaccinated staff that are required to self-isolate. This comes into effect after many businesses have experienced a rise in staff absences and costs related to the fast spread of Omicron.
This means that rather than being entitled to company sick pay (not applicable for all), they will only receive the Statutory Sick Pay (SSP) minimum which is £96.35 a week. Ikea have suggested that this applies to any employee without at least one Covid-19 vaccination with no valid medical reason or to those who do not have a confirmed vaccination appointment. The employer’s hope is that this will encourage people to get vaccinated so they remain entitled to the company sick pay. There is of course a risk that such employees may ignore the isolation rules and continue to work due to financial pressure increasing the risk of spreading the virus within the workplace.
The company said that throughout the pandemic it had not furloughed staff and those self-isolating had received full pay and that these policy changes only affect unvaccinated employees with high levels of absence. If an unvaccinated employee tests positive, they will still receive company sick pay as normal. Currently, in England, those who are at least double vaccinated do not have to self-isolate after being in contact with someone who tests positive, whereas those unvaccinated are required by law to isolate after being contacted by the NHS test and trace system.
Ikea is not the only company that have introduced policies that involve different treatment for the unvaccinated. Last year, Morrisons changed their sick pay terms, and other companies introduced compulsory vaccinations as a condition of employment.
The Chartered Institute of Personnel and Development (CIPD) official guidance was not to differentiate between employees, as the consequences could be complicated and expensive and whilst employers do have a legal obligation to protect the health of their employees, making it compulsory may cause a variety of issues.
In order to enforce a vaccine mandate, employers must show that it is being introduced for a legitimate business reason such as on health and safety grounds. An example of this would be in hospitals and care homes where employees are working around vulnerable people on a day to day basis. In many cases, employers may be unable to justify a blanket approach to vaccination but will instead strongly encourage it, with opportunities to get the vaccine during the working day as well as providing accurate information to target employees who are unvaccinated on grounds of fear or misinformation.
One of the biggest causes for concern is how to approach employees with disabilities or religious beliefs that prevent them from getting a vaccine. Employers need to be aware that treating such employees less favourably could result in a discrimination claim and they would need to be able to objectively justify their approach so would need to consider each situation separately and carefully. They would also be expected to have considered whether an alternative approach would achieve the same aim, including remote working, PPE, regular testing and social distancing or, potentially even considering an alternative role on a temporary basis where they would have less direct contact with others.
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