Can I cut sick pay for unvaccinated staff?

Several big companies such as Morrisons, IKEA, and Next have announced they will not pay company sick pay to staff who are not vaccinated and have to self-isolate due to exposure to COVID-19. This may have caused other employers to wonder whether they should also cut sick pay for unvaccinated staff in an effort to increase vaccination rates among their workforce. Our Employment Law team today discusses whether withholding sick pay from unvaccinated employees is lawful while identifying other risks employers should consider.

Statutory Sick Pay for unvaccinated staff

Employers are required by law to pay statutory sick pay (SSP) when an employee is unable to work due to incapacity. Earlier in the pandemic, the definition of incapacity for the purposes of SSP was changed to include employees who are required to self isolate due to COVID-19, even where they do not display symptoms. Employees’ entitlement to SSP is not affected by their vaccination status and any employee who meets the statutory requirements for SSP will be entitled to receive it at the rate set by the Government, which is currently £96.35 per week.

Company Sick Pay for unvaccinated staff

Company sick pay (sometimes referred to as contractual sick pay) is sick pay that businesses may choose to offer as an additional benefit to employees. Whether you can lawfully withhold company sick pay will depend on what is stated in your employees’ contracts of employment. If employees have a contractual right to company sick pay and if a period of self-isolation amounts to incapacity under the terms of the company sick pay scheme then refusing to pay company sick pay may lead to a tribunal claim for breach of contract, constructive dismissal and/or unlawful deduction from wages. You can try and change the terms of your employees’ contracts so that they no longer have a contractual right to company sick pay, but such a change would likely require their consent.

If employees do not have a contractual right to company sick pay, and it is paid at your discretion, then you may be able to deny company sick pay to an employee who is required to self-isolate but would otherwise be well enough to work.

Discrimination when cutting sick pay for unvaccinated staff

Employers who cut company sick pay for unvaccinated employees also risk a discrimination claim if the reason an employee is not vaccinated relates to a protected characteristic such as disability, pregnancy, or religion or philosophical belief. In such case, you may need to consider making an exception for the employee, or be prepared to justify your policy by demonstrating it is a proportionate means of achieving a legitimate aim.

The claims that employees may bring will not be direct discrimination claims because vaccination status is not a protected characteristic. The cases will need to be argued as indirect discrimination claims. These are claims where a policy or procedure is applied to all employees but indirectly it affects a group of employees with a common shared protected characteristic. There is however an opportunity to run a defence on the basis of justification if you are pursuing a legitimate aim by a proportionate means.

To clarify, in order for a condition to amount to a disability an employee needs to have:

• a physical or mental impairment,
• which affects their ability to carry a day to day activities and
• it needs to be long-term by which we mean that it has either lasted for 12 months or is likely to last for 12 months or more.

It may be that employees will be able to bring a claim on the basis that they have been treated less favourably as a result of something 'arising from' their disability. For instance, if an employee has a disability such as anxiety, and their anxiety is preventing them from being vaccinated, this is something arising from their disability and may therefore be grounds for an arising from disability claim. In such circumstances, the employer should consider whether there are reasonable adjustments that are possible to the policy that they wish to introduce.

Under the category of religion or philosophical belief, it is not thought that there are any religions that prohibit vaccinations per se.  However, an employee with a strong anti-vaccination belief may be able to argue that it amounts to a philosophical belief. The case of Grainger plc and ors v Nicholson identified five key components to a philosophical belief:

1. The belief must be genuinely held. This is a question of fact. The tribunal will be looking for something which shapes the life of the employee and changes their behaviour.
2. It must not be simply an opinion but must be more than that and again something that changes their life or their behaviour would be considered more than an opinion.
3. It must be related to a weighty and substantial aspect of human life and behaviour.
4. It must have cogency, seriousness, cohesion and importance.
5. It must be worthy of respect in a democratic society and not incompatible with human dignity or in conflict with the fundamental rights of others.

Ethical vegans object to vaccinations because they are said to be tested on animals. It is likely that if they are genuinely ethical vegans then this will be a protected belief.

Possible justifications employers may try and rely on is that the policy is necessary to increase employee vaccination rates and to protect health and safety in the workplace. However, it remains to be seen whether the Employment Tribunal will accept this justification.  It may be that there is a need to introduce a policy linked to vaccination if there is a risk of shutdowns in the event of an outbreak or if some sites are more critical than others. However, it is still necessary to show that it is reasonable to have the policy and also reasonable not to make any exceptions in the circumstances of any particular employee.

Other risks associated with cutting sick pay for unvaccinated staff

Aside from the risk of tribunal claims, there are additional reputational risks employers should consider when deciding whether to cut sick pay for unvaccinated staff. Some employees, whether vaccinated or not, may resent an employer they feel is “bullying” staff into a personal decision. At a time when many businesses are facing staff shortages, cutting such an important benefit may also make your company less attractive to potential employees.

One final risk to consider is an increased risk to health and safety. A cut to company sick pay may incentivise unvaccinated staff who test positive to lie about the need to self isolate and come in to work anyway. This may lead to an increase in infections in the workplace and undermine any health and safety justification employers may wish to rely on to justify their policy.

Cutting company sick pay is sure to be a contentious and complicated decision, and any employer considering it should seek legal advice. Our Employment Law Team can advise you on matters relating to company sick pay and other benefits if you contact us at employment@warnergoodman.co.uk or by calling 023 8071 7717.

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk. 

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.