Sick pay for unvaccinated staff
Recently we have seen various news reports of large organisations changing terms for sick pay for unvaccinated staff who are forced to isolate. This includes Next, Ikea and Morrisons, who have effectively cut sick pay entitlement for unvaccinated staff who are now only entitled to statutory sick pay (SSP), unless there are mitigating circumstances.
Current guidelines state that individuals who are fully vaccinated and live with or have been in contact with someone with COVID-19, do not need to self-isolate. Unvaccinated individuals who live with or have been in contact with someone with COVID-19 are still required to legally self-isolate for 10 full days. This is causing additional pressures on businesses due to the rapid spread of the Omicron variant and the unprecedented levels of staff absence.
At CEFM, we have received a number of calls through the helpline asking for advice as to whether or not it is legal for schools to follow suit and change their sick pay policy for unvaccinated staff. Most school policies have enhanced contractual sick pay schemes in place, which entitle staff to receive full pay in the event of sickness absence (‘occupational sick pay’) which is above and beyond SSP.
Occupational sick pay
At the start of the pandemic, SSP rules were changed to include COVID-19 cases. Where the member of staff cannot work from home, they are entitled to a minimum of SSP. As above, school staff are entitled to occupational sick pay. Therefore, it is in line with government and Acas guidance to pay occupational sick pay during self-isolation where the employee cannot work from home.
Claims of discrimination
Changing the policy for unvaccinated staff could have the effect of disproportionately impacting certain groups of individuals which may give rise to claims of discrimination. Individuals may have opted out of vaccination due to health reasons, pregnancy or religious beliefs. Further, removing the entitlement to occupational sick pay risks an unlawful deduction of wages claim, breach of contract and potential constructive dismissal claims.
Some businesses, such as the above mentioned, may have retained a degree of discretion as to whether or not to top up any SSP entitlement. This is not the case for most schools where there is no clear discretion in the contract of employment.
It is also important that personal data is handled in accordance with data protection policies. An individual’s vaccine status would be regarded as sensitive personal data.
Our current advice remains that unvaccinated staff should be entitled to full pay in the event of self-isolation following being in close contact or living with someone who has tested positive for COVID-19, unless of course they can work from home.
Advice may vary depending on the circumstances, for example, for those that are having to isolate following a period of travel abroad. Unvaccinated travellers must self-isolate at home for 10 days. Current rules state that employees are not entitled to SSP if they are self-isolating or quarantined following a period of travel abroad. In this scenario it may be possible to limit pay. However, your policy may allow for payment of SSP or occupational sick pay in this scenario.
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