Reducing sick pay for unvaccinated staff – is it legal?

Date posted: 13th January 2022

Under current Government guidance, people in England who have received at least two doses of the Covid vaccine are not required to self-isolate, however, unvaccinated people contacted through the test-and-trace system must still do so by law (NB Scotland, Wales, and Northern Ireland have similar rules). This causes issues for a number of employers as staff who are isolated and unable to attend work, as a result, is costing businesses both in terms of performance and money.

It has been reported in the media recently that some employers, such as IKEA, have decided to reduce sick pay for their unvaccinated employees as a means of discouraging absence, but what does that mean for other employers and, more importantly, is it legal?

Firstly we must be clear about what we mean when we say by ‘reducing sick pay. That does not mean reducing Statutory Sick Pay (SSP) to eligible staff (Statutory Sick Pay (SSP): Eligibility – GOV.UK (www.gov.uk) but it does apply to the company sick pay schemes which pay employees above SSP for periods of absence through ill-health. Employers are not under any obligation to maintain full sick pay for periods of self-isolation (unless their contracts of employment state they must) however, they must meet Statutory Sick Pay (SSP) requirements for eligible employees.

If an employer decides they are going to reduce company sick pay as a means of getting employees to be more careful with their actions and behaviors outside of the workplace and, as a result, reduce the likelihood of them being in close contact with a Covid-positive person and having to isolate, employers should ensure they are fully aware that they could, indirectly, by creating a problem for themselves beyond the absence itself.

Employers should be careful that introducing these rules doesn’t treat employees unfavorably, particularly those with underlying health issues. If an employee is medically exempt from getting vaccinated against Covid or has other reasonable grounds for not being vaccinated, such as if they are pregnant or have concerns relating to their race or religion, employers may raise claims of discrimination if they lose pay, in this case, company sick pay, because they are following Government isolation guidance. A detriment in this situation includes loss of pay.

To discuss how your business can be supported to manage absenteeism in the workplace correctly and safely, call Kingswood Group on 01245-204450 or email HR@kingswoodgroup.org today.