In this newsletter, we look at whether employers can reduce sick pay for the unvaccinated or force them to get jabbed. Many employers are exploring ways to encourage their staff to get fully vaccinated against Covid-19, short of mandating vaccination - which, from April, will be legally required for NHS and care home workers only.
But other industries too are concerned about ongoing staff shortages from the recent surge in Covid-19 cases and the resulting self-isolation periods -interrupting service and production. Can employers get tough about this? Here we look at some ways firms might be able to do so while avoiding the legal pitfalls that might arise.
1. What is the problem with unvaccinated staff?
As matters stand, fully vaccinated individuals who are in close contact with someone that has tested positive for Covid-19 do not need to self-isolate unless they are also Covid-positive. By contrast, unvaccinated individuals need to self-isolate regardless of whether they test positive. So unvaccinated staff have to take time off work.
2. Ikea, Next and several other large employers have cut sick pay for unvaccinated employees who are told to self-isolate after being in close contact with someone who has Covid-19. Can we do the same?
This will very much depend on whether your employees have a contractual right to company sick pay. The wording of employment contracts and sickness policies should be checked to see which provisions are contractual and which are not. Where there is a contractual right to company sick pay this should only be changed with employee consent. Forcing through changes unilaterally will risk breach of contract claims and will result in very poor employee relations. Even where company sick pay is not expressed to be a contractual right, employees may try to argue that such a term
should be implied through custom and practice.
Making changes to sick pay policies is rarely straightforward and advice should be sought before imposing
changes, particularly where they will result in employees receiving significantly less pay.
3. Are there are legal risks from treating vaccinated and unvaccinated employees differently?
Various discrimination claims are possible, depending on the factual scenario in each case. The decision to not have the Covid-19 vaccination may arise for medical reasons, a religious or philosophical belief, or for a reason related to pregnancy.
It is to be doubted that an “anti-vax” belief would be taken seriously as one that is legally protected. The high degree of confidence as regards vaccine safety in pregnancy would also appear to rule this area out as a serious legal risk. Of all of these, it is disability discrimination that is most relevant as there are (albeit limited) medical reasons for which someone may decide not to take the vaccine.
A decision to cut sick pay for the unvaccinated might therefore be indirect discrimination against disabled staff. In that case, it has to be objectively justified in every individual case: businesses also need to be able to show that such a policy is a proportionate means of achieving a legitimate aim.
Certainly, any policy limiting sick pay to statutory sick pay for unvaccinated staff would need to allow for case-by-case exemptions to accommodate medical conditions.
4. If we do not want to withhold company sick pay, can we make other changes to our policies that might
be helpful to the business?
Yes, there are other policy changes you may wish to make but the businesses’ ability to do so will depend on whether entitlements are a contractual right. You can consider whether any company sick pay for Covid-related absence should be a day 1 right (in the way that SSP currently is), or only paid after 4 days of absence, for example.
You may want to provide company sick pay only for a single period of Covid-related absence in every 12-
month rolling period with any subsequent period of Covid-related sickness absence receiving statutory sick
Many employer policies also require employees to actually be sick rather than simply unable to attend
work, so someone self-isolating may have no symptoms but be able to work from home.
5. Are we allowed to record the vaccination status of employees?
Linking an entitlement to company sick pay to vaccination status will necessarily require asking employees to confirm their vaccination status. This raises issues under GDPR as vaccination data is ‘special category data’ and therefore receives enhanced protection. This means that the business would need to be able to show that it has legitimate reasons for recording, processing and retaining such information. It must also only collect data that is necessary and not keep it for longer than necessary.
So the answer is that it is likely permitted so long as there is a legal basis, e.g. complying with your legal obligations in respect of health and safety and the substantial public interest in preventing the spread of the virus. Bear in mind that if the business can achieve its goal without collecting vaccination data then it is unlikely to be able to justify it.
6. What about mandating that all staff be vaccinated?
From April all patient-facing health and social care workers will have to be fully vaccinated in order to work. NHS staff who refused the vaccine will be offered the opportunity for redeployment into non-patient-facing roles that do not require Covid-19 vaccination, before ultimately losing their jobs.
Deploying a similar “no jab no job” approach will be highly risky in other industries where vaccination is not a legal requirement, although particular circumstances might justify it. For example, businesses who provide services on-site at NHS facilities may find that they are asked to only send vaccinated individuals. This could present all manner of difficulties and the business would need to consider how, and if, unvaccinated staff can be redeployed to other roles of equivalence.
If dismissal was unavoidable, it could be potentially fair for "some other substantial reason". As in all unfair dismissal cases, firms must follow a fair procedure and act reasonably in dismissing the employee, taking into account all the circumstances. We are ready to support and advise your business in these challenging times.
Please get in touch with your usual 3CS contact for further details.