17 January 2022

Recent reports have disclosed that companies have taken the decision to provide reduced sick pay for unvaccinated employees who are required to isolate as a close contact of someone who tests positive for Covid19.

Ikea, Wessex Water and Next have all confirmed that, employees who are not fully vaccinated will only receive SSP if they have to isolate.

As we know, for those who are fully vaccinated, the isolation period for close contact was removed but LFT’s are required for 7 days. Those who are unvaccinated still have to isolate for the full 10 days. This absence is, understandably, impacting all businesses.

For positive covid cases, self-isolation is being reduced again from seven days to five days from Monday 17 Jan, providing the individual has a negative LFT on both day five and day six. The companies will still pay full pay for those off with Covid.

What is the legal position? If the contract of employment provides for contractual sick pay – then to change to SSP only will be a unilateral change. Changes to contracts can only be made by agreement or, where there is a business necessity, by consultation. If consultation does not result in agreement, employers are potentially faced with a fire and rehire situation – another contentious issue!

If contractual sick pay is discretionary only, and the contractual entitlement only provides for SSP, then there is no breach. Employees will receive £96.35 per week in accordance with their contractual and statutory entitlement.

Could there be a discrimination issue? Well, yes potentially. If employees have declined the vaccine because of a medical condition, pregnancy or a particular faith, they may have grounds for a claim under the Equality Act for indirect discrimination. Employers would then have to demonstrate that they had a legitimate reason for paying SSP only and that the practice of doing so was proportionate.

Ikea & Next have each said that mitigating circumstances will be taken into account and Wessex Water will continue to pay full pay to those unable to have the vaccine or have an appointment scheduled.

It is clear that the prevalence of the omicron variant has had a significant impact on staff absences. For those unvaccinated employees, the requirement to isolate for 10 days has a detrimental impact on businesses across all sectors, including the NHS.

It might be understandable that employers want, or need, to reduce the costs of sickness absence but the use of the stick rather than a carrot to encourage vaccination among employees might well cause more problems.

For more information contact Dawn Gallie on 01935 846233