Can employers withhold statutory sick pay for unvaccinated staff?

Withholding statutory sick pay for not vaccinated employees carries a similar risk to introducing a ‘no jab, no job’ policy.

Since August 2021, those who have been double-jabbed and those under 18 are no longer legally required to self-isolate if they when identified as a close contact of a positive COVID-19.

In addition, with over 46 million people in England now having received both doses of the vaccine, adults no longer need to self-isolate if they are close contacts of a positive case. Instead, the advice is to take a PCR test as soon as possible to check if they have the virus.

However, a small percentage of the UK population has chosen not to receive a vaccine – around one in ten people (aged 12 or over) have not had a single jab.

But Morrison’s supermarket announced that it would no longer pay company sick pay for unvaccinated employees if they need to self-isolate. Instead, these employees will only be entitled to statutory sick pay (SSP) should they find themselves in this scenario.

The government introduced the Coronavirus Statutory Sick Pay Rebate scheme as a temporary Covid-19 measure to support small and medium-sized employers. This scheme enabled employers to reclaim up to 14 days SSP per employee if they or someone they lived with had Covid-19 or had received a notification to self-isolate.

This scheme ended in September 2021 and is likely why businesses are reconsidering their obligations towards paying sick pay.

The question therefore arises: what does this mean for the future workforce and requirements for vaccinations at work?

The issues with company sick pay

Ordinarily, SSP may only be refused if an employer has evidence to believe that the employee was not ill or if the employee failed to comply with the organisation’s absence notification requirements. An employee is entitled to use an official ‘ping’ notification to receive SSP.
Withholding SSP for unvaccinated employees carries similar risks to introducing a ‘no jab, no job’ policy in that it could attract claims, including those relating to discrimination and human rights. While some jobs will require the vaccination – such as working in care homes – in the main, having the vaccine is likely to remain a matter of personal choice.
The government has stressed that the vaccination programme is not mandatory, and thus individuals should not be discriminated against for refusing the jab. However, this illustrates a human rights dimension to any requirement that may be placed on individuals to be vaccinated.
Any detriment an individual suffers for refusing to be vaccinated could be used to launch a claim. It may also give rise to indirect discrimination claims on the basis that some ethnic groups are less likely to have been vaccinated than others, while others may choose not to have it on medical grounds.

Contractual provision of sick pay

As a contractual benefit, an employer may agree to pay more than the SSP rate to employees when they are absent from work due to sickness or injury. Suppose a contractual sick pay scheme is supplied for employees. In that case, it is legally binding. Any failure to make a payment according to the scheme’s rules would amount to a breach of contract. Whether the violation is sufficiently severe may further entitle the employee to claim constructive dismissal.
Where contractual sick pay is declared as entirely discretionary, it allows employers to exercise their discretion to pay more than SSP. Hence, if they wish to withhold it for those unvaccinated, they are in theory able to do so. In practice, however, where an employer ignores the discretion and routinely pays full pay to employees when they are absent, an Employment Tribunal will say that paying full salary for sickness absences has become a contractual term because of the ongoing custom and practice. This will then make it difficult for the employer to withhold sick pay to employees in the future.

What can employers take from this?

Employers considering amending their sick pay schemes as a financial measure (including temporarily) for those who are unvaccinated or for any other reason should bear in mind the following:
● Employers with enhanced contractual sick pay schemes should seek employees’ agreement or act under any contractual flexibility clause and consider any collective or individual consultation procedure.
● To maintain mutual trust and confidence, employers should ensure consistency in their decision-making. They must not discriminate against a particular employee, including the unvaccinated, because of any (physical or mental) disability.
● Employers with discretionary sick pay schemes must act fairly and reasonably and not arbitrarily or capriciously.
● While withholding SSP for unvaccinated employees may not cause financial hardship in all cases, it may still amount to a breach of contract and, depending on whether the violation is sufficiently severe, entitle the employee to claim constructive dismissal.

The union, Unite, suggests that Morrisons’ decision, intended to encourage vaccine uptake while also mitigating the “biblical costs” of the pandemic, will raise human rights and ethical issues and give rise to discrimination claims.
There is undoubtedly a range of considerations for employers to contemplate before implementing this type of policy. It will be interesting to see how the Tribunal responds to any claims that seek to challenge the same. The level of risk will depend on the specific employees impacted by the policy. It will be best practice to complete a risk assessment before any practical steps are taken.

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