Paul Kelly, partner and head of the Employment team at Blacks Solicitors (www.lawblacks.com), examines the introduction of new sick pay policies for unvaccinated employees and considers the legal implications for the hospitality sector.
Since December 2021, fully vaccinated ‘close contacts’ of somebody who has tested positive with COVID-19 do not have to self-isolate. However, as large numbers of people across the UK have opted out of receiving a vaccine, some businesses have introduced new rules around sick pay which could adversely affect the unvaccinated.The AA, Ocado, and Next are among a group of businesses who have chosen to cut sick pay for unvaccinated employees that are forced to self isolate due to Covid-19.
While the government has reconsidered mandatory vaccinations for front line health and social care workers, the issue of sick pay for those who have refused or are unable to receive a vaccination will remain an issue in any sector, including hospitality, as long as self isolation restrictions are in place and Covid-19 remains a concern.
SICK PAY POLICIES
In response to self isolation rules and citing a desire to mitigate the “biblical costs” of dealing with the pandemic, some large employers (including Ikea and Morrisons) have, following review of their company sick pay provisions, adjusted their policies to state that any unvaccinated employee who is off on sick leave because they have been identified as being a close contact of someone who has tested positive, and are therefore required to self-isolate for 10 days, will not be entitled to company sick pay.
Instead, these employees will only receive statutory sick pay, which is currently £96.35 per week, unless they have mitigating circumstances (e.g. they are medically exempt).
It is important to note that, under these revised sick pay arrangements, if an unvaccinated employee tests positive for the virus and has to self-isolate in consequence, they will still be entitled to company sick pay (if the employer offers this). In those circumstances, the employee will be absent due to being ill, rather than having to isolate due to being a close contact of someone who has tested positive.
LEGAL IMPLICATIONS
Employers contemplating such a change to their sick pay policies will need to first check their employment contracts carefully to assess what contractual entitlement (if any) their employees have to enhanced company sick pay. Such a major change in terms could constitute a breach of contract if imposed unilaterally and, therefore, consultation with affected employees may be required.
Hospitality businesses that introduce sick pay policies specifically for the unvaccinated are potentially exposing themselves to an abundance of legal claims. There is a theoretical route to a claim, in particular for indirect discrimination under the Equality Act 2010.The policy of paying unvaccinated staff reduced sick pay compared to other colleagues will place a particular group at a disadvantage, which is discriminatory.Tribunals will grapple with the question of whether such a policy is a proportionate means of achieving a legitimate aim.
A real concern with this policy shift is that unvaccinated employees who are supposed to self-isolate will either continue to attend work when carrying the virus but being asymptomatic so as to avoid a loss of pay; or inform their employers that they are actually ill rather than self-isolating.
ALTERNATIVE MEASURES
Other businesses have sought different ways to encourage vaccinations among employees with great success. Arranging for surgeries to attend the workplace and offer vaccine clinics may be a better approach that avoids potential legal claims. Pursuing a form of education before letting employees decide for themselves, and making it as convenient as possible to arrange a vaccine, are potentially more effective.
