COVID-19 vaccination status: How easy is it for employers to change rules regarding sick pay?

Harrison Drury’s employment law team explains the risks in withdrawing sick pay for unvaccinated employees and what employers need to consider before making any changes to sick pay policies.

COVID-19 vaccination status has been making headlines lately with a number of household retail names such as Morrisons, Next and Ikea removing sick pay for unvaccinated employees.

The current rules in England about self-isolation due to COVID-19 vary significantly based on the individual’s vaccination status. Unvaccinated people are still legally required to self-isolate for a full 10 days if they live in the same household as someone who tests positive for COVID-19.

In contrast, those who are fully vaccinated do not need to self-isolate for any period if they live in the same household as, or are in close contact of, someone who is COVID-19 positive.

Being unvaccinated and having to self-isolate and unable to work, while not actually COVID-19 positive, is highly likely to cause disruption to work schedules and frustration for employers.

It is important to note that the changes in sick pay recently announced by these large employers appears to relate to non-vaccinated employees who are or have been in close contact with people who have tested positive and therefore need to self-isolate. The withdrawal of sick pay is not intended to affect employees who must self-isolate due to testing positive for COVID-19.

Statutory Sick Pay (SSP) and enhanced company sick pay

It is also worth noting that the changes in sick pay announced by the likes of Next and Ikea relates to enhanced company sick pay, not Statutory Sick Pay (SSP). The rules around SSP and self-isolation, regardless of a person’s vaccination status, remain the same. Unvaccinated workers are still eligible for SSP (of £96.35 a week) during the 10 days of self-isolation.

So, how easy is it for employers to change rules on sick pay? This depends entirely on how the enhanced sick pay policies are drafted but, in any event, it’s still not as simple as saying: “We are no longer paying enhanced sick pay for unvaccinated employees”.

There is a risk that adopting such a change would be a breach of your employee’s terms and conditions. Employers may therefore need to agree the changes with the workforce and while challenging, if approached in the right way, it may be possible to reach a consensus. There is also the possibility of firing and re-hiring employees to get around making changes to sick pay policies, but again, this comes with its own issues and risks.

The risk of discrimination

Applying a broad-brush approach to all employees is incredibly risky, and potentially indirectly discriminatory, given that high levels of women of childbearing age and certain ethnic groups are choosing to remain unvaccinated.

It may be possible to justify such a change in policy on health and safety grounds or due to client requirements – but this would need to evidenced. It would also be advisable to understand the reasons why an employee has chosen not to be vaccinated – and deal with each member of staff and/or absence on a case-by-case basis, to minimise any potential for issues.

Applying such a policy may provide a short-term fix, but could cause a longer-term issue in staff engagement, recruitment and retention. Towards the end of January 2022, John Lewis made an announcement confirming that all staff would be treated in the same way irrespective of vaccination status. Coupled with the announcement that self-isolation in England will end on 24 March 2022, this now poses the question – is there a need for employers to take such a bold approach?

If you are considering a change to your company’s sick pay policies, it is important to fully understand your current contractual entitlements and ensure any changes are implemented in the correct manner.

If you would like to discuss and review your business’ employee terms and conditions and seek to put in place changes to your sick pay policies, please contact Harrison Drury’s employment law team on 01772 258321.