Ikea, Ocado, Next, and Morrisons, among other well-known companies, recently announced that unvaccinated UK employees who take time from work to self-isolate and do not have a valid medical exemption will not be rewarded at their standard ‘day rate.’ Rather than that, they will get the legal minimum statutory sick pay (SSP) amount of £96.35 per week, the very minimum permitted by law. Employers are increasingly implementing such laws in order to limit the amount of money paid to unvaccinated employees for self-isolation.
Even though many news reports portray such laws as a salary decrease, many individuals may wonder if it is permissible to penalise some employees while not penalising others, particularly in light of what Ikea admits is an “emotionally sensitive subject” for many people.
Employers considering following suit should be aware that cutting sick pay in this manner may expose the company to Employment Tribunal claims for contract violation or discrimination against employees. Employers should carefully consider whether they may face claims as a result of implementing a sick pay cut before proceeding.
You have two options: Sick Pay or Covid-19 Self Isolation.
Employees who are unable to work due to illness are entitled to £96.35 per week in Statutory Sick Pay (‘SSP’), which must be paid by their employers for any period they are absent from work due to illness. Employers may not pay less than this amount unless the employee is entitled for SSP benefits. Things grew even more complicated when, at the start of the pandemic in March 2020, the regulations were changed to allow SSP to be used by employees who were compelled to self-isolate, even if they were not actually ill at the time, further complicating matters. Due to the fact that all employees, regardless of vaccination status, are required to self-isolate, there was no statistically significant difference in infection rates between vaccinated and unvaccinated personnel.
In August 2021, self-isolation was abolished if the individual had had two vaccinations previous to that date. Staff who had been vaccinated were far less likely to be absent if they became ill with Covid-19 than those who had not been vaccinated, who would be absent if need to self-isolate when not infected.
The responsibility of a business to compensate an employee for COVID-related absences will be decided by whether the business gives enhanced sick pay to employees. Numerous businesses have enhanced sick pay policies in place that provide for normal pay for several weeks of absence each year. However, pay during illness absence (which includes periods of self-isolation) cannot be less than the current Statutory Sick Pay rate. Although it is uncommon for an employee’s contract to include extended sick pay, it does occur on occasion. Sick pay is typically discretionary and stipulated solely in a policy document, but it does occur on occasion. Employees’ claims for additional sick pay and the entitlement to receive SSP are frequently linked, making administration problematic. When the SSP entitlement was broadened to cover periods of self-isolation, many employers were forced to provide extra sick pay for periods of self-isolation even if the employee was not actually ill at the time.
Employers interested in amending their policies to abolish the right to extra sick pay and pay unvaccinated employees only the minimum wage should consult an attorney. Statutory Disease Employees compensated for self-isolation are compensated on the presumption that they would not be required to self-isolate if they had gotten a vaccination. Due to the employee’s failure to obtain the vaccine, they have effectively imposed a time of self-isolation on themselves. This is in contrast to the time of illness absence that may be required for an employee who has contracted COVID-19 and thus requires sick leave.
Possibilities for the emergence of claims
If an employee is not vaccinated and is denied additional sick pay, they may have a number of claims against their company, including violation of contract and discrimination.
A contract of employment may include a provision for enhanced sick pay, in which case the employee may be contractually entitled to enhanced sick pay during periods of absence, and reducing the amount of sick pay may be considered a breach of the contract, depending on the contract’s wording. Employers may argue that self-isolating while not actually ill using COVID-19 does not constitute “sick” leave, and thus that additional sick pay is not payable in these cases. However, articulating this argument may be difficult since it may require splitting hairs between when an employee is considered ill and when they are making efforts to avoid being ill, which may be difficult.
The cause of the employee’s non-receipt of the COVID-19 vaccine is what determines whether or not a discrimination claim may be lodged. The explanation for this is that the reason given will identify the protected characteristic around which they will base their discrimination claim.
The Equality Act 2010 includes several “protected characteristics,” including race, religion, sexual orientation, age, handicap, and religious beliefs. A religious or belief discrimination claim would most likely be filed by an employee who objected to the vaccination on moral grounds, whereas a disability discrimination claim would most likely be brought by an employee who was unable to take the immunisation due to a medical condition.
Employers who face discrimination charges will very probably be compelled to justify the changes they make to their sick pay policy, and as a result, the employer must be prepared to articulate the rationale for the policy change prior to implementing it. Whatever the reason, it is quite likely that the matter will be examined at a future Employment Tribunal.
Take Caution
Employers must first carefully analyse the aim of any policy they propose, and then ensure that the impact of their legal obligations to their employees is correctly considered. Prior to implementing any policy, the employer should thoroughly consider the risks connected with it. Seeking expert help should also be explored as part of this procedure. Additionally, it’s critical to realise that just because huge corporations do something does not guarantee it’s legal.