By Damian Kelly, partner and head of the employment law team at law firm Lodders (www.lodders.co.uk)
Recent policy announcements by the likes of Morrisons, Ikea and Next have heightened focus on how employers are handling the continuing COVID19 pandemic.
These employers have announced plans to reduce sick pay for unvaccinated staff in the UK who are forced to self-isolate due to COVID19. This comes as the continuing impact of COVID generates a ‘perfect storm’ for many employers, who face the combined challenges of increased infection rates, increased absence rates, labour shortages and a resulting increase in wage demands.
Companies have already started to raise their prices to customers in response.Another weapon in their armoury is to cut staff costs – and a key staff cost is the cost of absence.With Statutory Sick Pay (SSP) still less than £100 per week, employers stand to save significant costs by reducing sick pay from full pay to SSP.
These moves are not without potential risk. Reducing sick pay for all unvaccinated staff required to self-isolate could well lead to claims for unlawful discrimination by disabled employees who claim they could not be vaccinated due to a medical condition. It is notable that Morrisons, Ikea
and Next are all reported to be maintaining full sick pay for unvaccinated employees who test positive for COVID19 (as opposed to those employees required to self-isolate due to close contacts) and for those employees who have ‘mitigating circumstances’, eg medical exemptions for vaccination. Employers would be well advised to follow the same path to minimise their legal claims exposure.
Employers should also consider the terms of their contractual sick pay policies to check that reducing sick pay in these circumstances doesn’t represent a breach of contract. If it does, they could face claims for unpaid wages and constructive unfair dismissal.
In addition to purely legal risks, employers should be mindful of damaging staff morale. How employers continue to handle the pandemic will go a long way to establishing strong levels of employee engagement.These can be hard won but easily lost. Employers considering policy changes are advised to focus strongly on their communications.They should make sure they maintain a dialogue with staff and employee representatives, setting out the rationale for proposed policy changes and answering queries which are raised in response.They should also renew steps to encourage all staff to get vaccinated wherever possible.”
