This week alone we have read in the news that Next and Ocado are joining a growing list of employers who have decided not to pay sick pay to the great unwashed aka unvaccinated members of staff. (BBC News, Guardian).
The Guardian reports:
Next has become one of the first large UK retailers to cut sick pay for its unvaccinated staff who have to isolate after coming into contact with someone who has Covid.
However, staff who have not been vaccinated will still receive sick pay if they test positive for the virus.
Difference between Company Sick Pay and Statutory Sick Pay
The first thing to note is that even if your company makes a similar decision, employees will always be entitled to statutory sick pay if you are off work. That is a minimal legal requirement.
However, many people get company sick pay too, which is either a contractual or discretionary right to be paid full (or part) pay usually for a period of time following illness or sick leave.
What the companies are saying is that if an employee has not been vaccinated, and then have to isolate after coming into contact with someone with covid, that the company should not have to pay for what is essentially the employees decision to be unvaccinated. The current guidance, of course, is that vaccinated people do not have to isolate if they come into contact with someone only if they themselves show symptoms.
But, in my view, there is a legal risk with this approach and it is not something I’d suggest a business client does lightly. Thought needs to go in to it.
Legal issues of treating vaccinated and unvaccinated people differently
However, as of January 2022, there is no mandatory vaccination law. The Government (and indeed Governments around the world) seem intent on “pissing off” unvaccinated people (in the words of Emmanuel Macron, the French President) but can a company do so?
There are at least two types of claims that could arise with such actions.
Potential Breach of Contract Claims
Many companies have company sick pay as part of their contracts of employment. By law, a contract of employment MUST state sick pay provisions. And therefore many employers contracts state something like:
After you have completed 6 months continuous service subject to your compliance with this agreement you shall be entitled to receive sick pay from the Company on the basis set out below. This does not affect any entitlement you may have to receive Statutory Sick Pay (SSP) for the same periods of sickness absence, although any sick pay you receive from the Company shall be inclusive of any SSP due to you. Your qualifying days for SSP purposes are [Monday] to [Friday].
Less than one year’s service: [Six] weeks’ full pay [and [six] weeks’ half pay] in any -month period. One to two years’ service:  weeks’ full pay [and  weeks’ half pay] in any -month period. Two years’ service or more:  weeks’ full pay in any 12-month period.
taken from Practical Law template contract. of employment.
Sometimes the wording says “at the absolute discretion of the company” sometimes the contract says “you may be eligible to receive sick pay in accordance with the Company’s sickness policy. This may be amended from time to time and is available in the staff handbook”.
The question then for us is: Is there a contractual right to sick pay?
If the wording guarantees company sick pay, then it is a contractual right and cannot be unilaterally amended by the employer.
If it is discretionary or reserves the right to be changed, then changes can be made.
This is key, because if it is contractual and changes are made, employees will be able to bring breach of contract claims in the Employment Tribunal
Potential Discrimination Claims
Some employment lawyers consider that such vaccination sick pay polices may be discriminatory.
Setting a policy which treats some people differently can amount to indirect discrimination under the Equality Act.
While I might not agree with such policies in principle, I do not consider that it is likely a Court or Tribunal will consider such policies to be discriminatory.
There was a recent decision in Europe which held that mandatory vaccinations were reasonable and given the public rhetoric, I think a Judge would say that there was a legitimate aim to be overcome.
However, there may be one or two people that can successfully argue at some point that taking the vaccine would be against their beliefs. There was a recent case in the Manchester Employment Tribunals, known only as X v Y to protect the parties, in which it was held by the Judge that a decision to avoid work and people for health and safety reasons did not amount to a philosophical belief under the discrimination legislation. The Claimant’s case said:
“I took the decision not to return to the workplace on the grounds of health and safety. I had reasonable and justifiable health and safety concerns about the workplace surrounding Covid-19, and I was also very worried about the increasing spread of the virus. I had a genuine fear of getting the virus myself, and a fear of passing it on to my partner (who is at high risk of getting seriously unwell from Covid-19)”
The Judge decided it was not a protected belief and dismissed the claim.
I think this is the kind of logic that we would see if other cases went further.
Thus, while I urge caution to my employer clients, my view is that having different sick pay for vaccinated and unvaccinated staff is possible if not problematic.
The Real Issue with Two Tier Systems
My (non-legal) opinion, for what its worth, is that introducing such a two tier system is dangerous and a slippery slope that we should as a free country seek to avoid.
Where does it lead?
- If you don’t exercise 3 times a week, you won’t get sick pay?
- If you’re overweight, we’re not paying if you have a heart attack?
- If you smoke, we’re not covering you for cancer?
While these are all unprotected characteristics in the Equality Act, it surely goes against common morals to discriminate against these people.
Or is it? What are your views.
In my LinkedIn Poll while writing this, I asked the question and here’s the current results: