11 Jan 2022

Employment

As Ikea cuts enhanced sick pay for unvaccinated, self-isolating workers, will we see other employers follow suit?

With the highly infectious Omicron Covid strain continuing to cause mass staff absences across the UK, there is no doubt that employers are facing a difficult start to 2022. Major companies, including Ikea and Wessex Water, are now bringing in new policies that penalise unvaccinated staff members who are forced to self-isolate because of Covid exposure. But is that the right response? Our head of employment law, Daniel Wilde, gives his view on this latest development.
 

It has been reported this week that two major UK employers are cutting sick pay for unvaccinated staff who need to self-isolate because of Covid exposure.

At both Ikea and Wessex Water, unvaccinated staff without a valid medical reason for not having the vaccine have been told that they will only receive Statutory Sick Pay (SSP), rather than enhanced company sick pay, if they are required to self-isolate as a close contact of a Covid case. This means that the affected workers will receive the current rate of SSP, £96.35 per week, rather than any enhanced sick pay for their self-isolation period. If it is confirmed that they have Covid-19, however, the staff will continue to receive their full sick pay.

This is clearly an emotive topic as many people hold very strong views on workers being forced to have the vaccination, leaving many employers unsure of their position.

Since the coronavirus vaccine was introduced, there has been a long series of attempts by companies to encourage employees to receive it, with many such as Santander and ASDA offering paid time off for vaccinations. Last year, supermarket Morrisons cut sick pay terms, while banking giant Citigroup, have introduced a “no jab, no job” policy and Delta Airlines imposed a surcharge on unvaccinated staff members of its healthcare plan.

This latest step has incited significant criticism, forcing both Ikea and Wessex Water to defend their decision to introduce these new policies, explaining that they have had to evolve with ever-changing circumstances. Employers across the country are facing rising costs, significant staff absence and ongoing restrictions and say that these changes are necessary to ensure they can provide uninterrupted services to their customers.

From an employment law perspective, there are clearly a number of pros and cons with changing the sick pay terms for only certain members of the workforce. While the move may well encourage more staff to get vaccinated, it may also mean that others are less likely to test themselves or self-isolate because they can’t afford to take time off work.

Clearly, employers are doing whatever they can to get as many employees as possible back into work at this challenging time but to avoid legal risks, they should always consider whether their actions are proportionate as a means of achieving this aim.

It is also worth remembering that employers cannot unilaterally vary the terms and conditions on an existing employment contract but must first get agreement from the employees if they want to make changes. As it is unlikely that employees will agree to these changes, then there may be risks with progressing with this course of action.

In some sectors, such as healthcare, employers’ efforts to encourage their staff to get vaccinated will be seen as ‘a reasonable instruction’ or necessary as a result of Government regulation as it is a way of protecting vulnerable patients. However, many employees in a wide variety of industries are still refusing to have the jab, for a wide range of reasons, leaving many employers unsure as to what can be done.

Generally, to avoid legal risks, we would always advise employers not to differentiate between the terms and conditions for different employees, to avoid any potential discrimination against individuals.  A large proportion of people are reluctant to have the vaccine because of fears around conspiracy theories and infringements on human rights but many individuals who refuse it may be protected under the Equality Act 2010 on the basis of their religious or philosophical beliefs. Other groups, such as vegans, may disapprove of the vaccine because animal products were used in their development

In all cases, if you are considering taking any action to encourage your staff to get vaccinated, we would advise meeting with them first to discuss their concerns and signpost them to reliable, impartial information about the vaccine. Always handle all discussions very carefully and if your policy adversely affects people from a protected group (be it race, age, sex, disability and religion or belief), it will potentially be indirectly discriminatory and if challenged, be aware that you will have to be able to justify your approach.

Our employment law experts are able to offer specialist advice on a wide range of issues. For a confidential conversation, please contact Daniel Wilde on 01633 244233 or email wilded@hevans.com 

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