A growing list of big brand employers are changing their rules and cutting sick pay to the statutory level for unvaccinated employees with no mitigating circumstances or medical exemption, who are required to self-isolate after being identified as a close contact of someone with Covid-19.
Background
Currently, Statutory Sick Pay is extended to cover the need to self-isolate until March 2022. In England, if an unvaccinated person comes into contact with someone who tests positive for Covid-19, then they are required to self-isolate for 10 full days after their date of exposure to the virus. In contrast, a vaccinated person does not need to self-isolate and can do seven days of lateral flow testing instead.
In recent news we have seen that Ikea, Wessex Water, Ocado and Next have joined other employers in cutting sick pay to Statutory Sick Pay only, which is currently £96.35 a week, for unvaccinated staff who need to self-isolate because of Covid-19 exposure. It comes as firms struggle with mass staff absences and rising costs. However, there is a concern that cutting sick pay could discourage people from isolating when required to do so. There is also a risk that employers could face potential claims from such employees if they unilaterally make changes to contracts and their policies.
What does this mean for employers
Employers need to be aware that unilateral change to policy to cut sick pay may lead to breach of contract or discrimination claims. Employers who wish to make any such changes should review their sick pay policies and contracts of employment to see what their employees are entitled to.
A breach of contract claim could be brought if the employee is able to establish that there is a contractual right to receive enhanced sick pay, and that the period of self-isolation amounts to a period of incapacity for the purposes of that contractual right.
There is also a risk that employees who are medically exempt from the Covid-19 vaccination may bring a claim for discrimination. Discrimination claims could also be brought based on protected characteristics such as age, disability, pregnancy or maternity, sex, race and religion or belief.
Unions are calling for employers to not take such action as vaccinations are not mandatory in the UK other than currently for workers in CQC registered care homes. Taking such action is likely to create a two tier workforce between vaccinated and unvaccinated and could lead to staff leaving and general employee relation issues.
If you require more information please contact a member of the Employment Team.
