Q&A – Can we reduce sick pay for unvaccinated staff?

Q: I have been reading in the press about some big employers such as Next and IKEA who have said they will be reducing sick pay for unvaccinated staff, so that when they are required to self-isolate after coming into contact with a Covid case, they are only entitled to SSP. Is that lawful, and could smaller employers try something similar?

A: You’re right that there has been quite a lot of media attention on this issue recently. Many employers have become frustrated at the amount of time off being taken by unvaccinated staff who have to self-isolate, especially when Covid case numbers are high, and it has meant that there is an increased focus on absence management and controlling the costs of staff absence.

Although the changes being made by these big employers have grabbed the headlines, they are potentially problematic from a legal point of view. Effectively you would be creating a two tier system, and you would potentially be taking the risk of claims from unvaccinated workers.

It is important to remember that there are a variety of reasons why people may not be vaccinated, so a blanket ‘one size fits all’ policy is not likely to be a good idea. For example, some people cannot be vaccinated for health reasons, so you would need to ensure that they are not disadvantaged by your policy so as to avoid potential disability discrimination claims. There are also some who have a religious objection to receiving the vaccine, and so there is a risk of a claim for discrimination on that basis. If you do decide to implement this kind of policy then it will be important to make clear that people’s situations will be judged on a case by case basis (IKEA has said that ‘mitigating circumstances’ will be taken into account).

It is also worth thinking about whether this kind of policy would be likely to achieve its aims – you might find that it makes people less likely to be honest about their vaccination status, and those who are unvaccinated might feel they have to come in to work rather than self-isolate, which is clearly not a good idea. It is also really important that any change employers are planning to make still ensures that employees who test positive would still be entitled to sick pay as normal, for obvious reasons.

If there are contractual provisions in place regarding sick pay (which will be the case in most organisations) then making changes to those terms would normally require employees’ agreement. It is therefore best to take advice if you are considering introducing something along these lines.

From what we can gather, many of the employers who have announced this approach seem to be relying upon the fact that their rules on sick pay are designed to cover situations where the employee is actually sick themselves, rather than just being required to self-isolate.

For those employers that do decide to withhold sick pay from unvaccinated staff who are self-isolating, it remains to be seen whether or not this is something employees will challenge, and whether such challenges succeed.