Several employers including Ikea and Wessex Water have cut sick pay for unvaccinated employees who are told to self-isolate after being in close contact with someone who has Covid-19.
From today (10 January) any Wessex Water employee who has not had at least one coronavirus vaccination and does not have a medical exemption or confirmed vaccination appointment, will only receive statutory sick pay (SSP) for any period they are required to self-isolate after being identified as a contact of someone who has the virus.
This will mean that the affected workers will receive the current rate of SSP, £96.35 per week, rather than any enhanced sick pay for their self-isolation period.
The company will pay unvaccinated staff their full sick pay if it is confirmed they have Covid-19.
A Wessex Water spokesperson said: “The vast majority of our workforce has been vaccinated and it’s important as a company providing essential services with key worker employees, the remainder get vaccinated to protect themselves, customers and their colleagues. To make it easy for our staff, vaccine appointments can be booked in work time.
“Absences due to Covid have doubled in the last week, so we need everyone to be available so we can continue to provide uninterrupted essential water and sewerage services.”
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The utility company joins numerous other employers that have implemented similar policies. Over the weekend it emerged that Ikea has operated a comparable policy since September, while Morrisons last year told investors that it needed to tackle the “biblical costs of managing Covid” by cutting sick pay for unvaccinated staff who needed to self-isolate.
An Ikea spokesperson said: “Since the start of the pandemic, the health and safety of our co-workers has been our highest priority. Since then, Ikea has been working with a separate absence addendum, which is regularly reviewed in line with changes to government guidance.
“Following the vaccine roll out and changes in the government’s isolation requirements, our approach to Covid-related absences evolved from the 20th September 2021 – an approach developed with our social partners and national co-worker committee.
“Fully vaccinated co-workers or those that are unvaccinated owing to mitigating circumstances which, for example, could include pregnancy or other medical grounds, will receive full pay.
“Unvaccinated co-workers without mitigating circumstances that test positive with Covid will be paid full company sick pay in line with our company absence policy. Unvaccinated co-workers without mitigating circumstances who have been identified as close contacts of a positive case will be paid Statutory Sick Pay. We know this is a highly emotive topic and we appreciate there are many unique circumstances. As such, all will be considered on a case by case basis.”
Fully vaccinated people in England are not required to self-isolate if they have been identified as a close contact of someone who has Covid-19. However, people who have not had at least two doses of a Covid vaccine are still required to isolate for 10 days.
Breach of contract?
Employers should be careful about reducing sick pay to the legal minimum where enhanced sick pay is included in employment contracts, or if an employee is not able to get vaccinated because of a protected characteristic such as disability.
Stephen Ravenscroft, head of employment at law firm Memery Crystal, said: “The withdrawal of enhanced sick pay may give rise to claims for breach of contract and/or discrimination. A breach of contract claim would need to establish firstly that there is a contractual right to be eligible to receive enhanced sick pay, and secondly that any period of self-isolation amounts to a period of incapacity for the purposes of that contractual right.
Additional sick pay is often discretionary, meaning that the employer could choose whether to pay additional sick pay or not and potentially choose not to pay unvaccinated employees” – David Jepps, Keystone Law
“Some employers fear that the risk of not paying enhanced sick pay (where it is normally available) to employees who have to self-isolate but are asymptomatic is that those employees may otherwise continue to attend work if they are worried about losing normal pay during any period of self-isolation.”
David Jepps, an employment partner at Keystone Law, noted that SSP rules were changed at the beginning of the pandemic to allow employees who were required to self-isolate to be paid up to two weeks’ SSP, including those who are unvaccinated. However, employers can choose whether or not to pay any additional sick pay.
“Additional sick pay is often discretionary, meaning that the employer could choose whether to pay additional sick pay or not and potentially choose not to pay unvaccinated employees,” he said.
Discrimination claims
Kate Palmer, HR advice and consultancy director at Peninsula, said organisations should ensure that such policies do not result in some employees being treated unfavourably.
“Employees who are medically exempt from getting the Covid jab, or those with reasonable other grounds for not being vaccinated (e.g. staff who are pregnant or have concerns about getting it due to reasons relating to their race or religion), may raise claims of discrimination if they are put at a detriment as a result of following government isolation guidance. A detriment in this situation includes loss of pay,” said Palmer.
Employees who are medically exempt from getting the Covid jab, or those with reasonable other grounds for not being vaccinated … may raise claims of discrimination if they are put at a detriment as a result of following government isolation guidance” – Kate Palmer, Peninsula
“Ikea, and all other business who wish to adopt a similar approach, must first consider the wider impact this may have on staff and put in place adjustments where needed, to avoid any potential risk of claims.”
Dr Anne Salmon, an employment partner at Pinsent Masons, said the firm had seen “lots of interest” from employers considering whether to reduce sick pay for the unvaccinated. She said it was likely that the only applicable discrimination claim would be for indirect discrimination.
“Employers will be able to defeat such a claim if they can show objective justification (essentially a good business rationale for the decision, taking account of the impact that it has on the individual).”
Meanwhile, the government is considering whether the self-isolation period if someone tests positive for Covid should be cut to five days, in order to relieve the pressure sickness absence has on employers.
People who test positive for Covid are required to self-isolate for at least seven days. In England, Wales and Northern Ireland they can end their isolation period on day seven if they receive negative lateral flow test results on day six and day seven, but in Scotland the self-isolation period remains 10 days.
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Vaccines minister Nadhim Zahawi told the BBC that cutting the self-isolation period would “certainly help” relieve staffing pressures, but indicated that UK Health Security Agency had said that infections might spike if the period was reduced from seven to five days.
