Reducing sick pay for the unvaccinated: what are the pitfalls for employers?

There have been multiple reports of employers limiting the sick pay entitlement of employees who have chosen not to be vaccinated against Covid-19. XpertHR’s consultant editor Darren Newman explains the potential risks in terms of contractual entitlements, discrimination and employee relations.

Although individual policies vary from employer to employer, a typical approach is to withhold sick pay from staff who are required to self-isolate after coming into contact with someone who has tested positive. Since there is no longer any need to self-isolate for a person who has been fully vaccinated, the argument is that this form of absence is essentially self-inflicted.

How does this approach stand up legally and how far can an employer go in drawing a distinction between vaccinated and unvaccinated employees? Could a policy go so far as to deny sick pay to seriously ill employees on the basis that their illness could have been avoided if they had taken the vaccine?

The first point to make is that there is a distinction to draw between statutory sick pay (SSP) and any additional sick pay offered by the employer. A qualifying employee who is incapable of work because of sickness or injury – or who is required to self-isolate – for at least four days is entitled to be paid SSP. This right does not depend on vaccination status and an employer cannot withhold SSP from employees who qualify for it just because they have not had the vaccine.

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However, SSP is a very modest entitlement – just £96.35 per week. Of more interest is the additional sick pay that an employer might offer over and above SSP. Here, the key question is whether that sick pay is a contractual entitlement or payable at the employer’s discretion.

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