Supermarket chain Morrisons hit the headlines recently when it announced an adjustment of its sick pay rules; it will no longer pay company sick pay to voluntarily unvaccinated employees who have been ‘pinged’ and have to self-isolate because of close contact with someone with Covid-19.
Since August, those who are vaccinated no longer have to self-isolate, unless they have been exposed to someone who has the Omicron variant. Some employers are looking not to pay sick pay if an unvaccinated employee catches Covid-19. Others, like Morrisons, are not paying full sick pay to unvaccinated employees who have to self-isolate.
In both situations, the employee will be entitled to statutory sick pay. During the pandemic, the statutory sick pay rules were changed, allowing employees who are unable to work due to having to self-isolate to claim statutory sick pay even though they are not ill themselves.
For company sick pay rules, much will depend upon the wording of the contract of employment. Where an employee is ill with Covid-19 it is unlikely that the contract of employment will distinguish between the reasons for the absence, and so an employee who is ill with Covid-19 is still ill, and will be entitled to company sick pay.
However, some contracts of employment say that sick pay is discretionary. Even if sick pay is said to be discretionary, it would be high risk to exercise the discretion to withhold sick pay. Vaccinated employees can still catch Covid-19 – and so it is difficult to say that the employee is at fault for catching Covid-19 by not being vaccinated.
However, there is more scope for employers to exercise their discretion to withhold sick pay for those having to self-isolate. These employees would not have had to self-isolate had they been vaccinated.
Any rule or practice that requires employees to be vaccinated could be challenged as discriminatory. For example, the group of employees who are least likely to be vaccinated are younger females, who have concerns about the impact of Covid-19 on either fertility or pregnancy. Certain ethnic groups are also less likely to be vaccinated.
However, even if an employee can show that the rule is potentially indirectly discriminatory, the employer can still seek to justify the rule or practice as being a proportionate means of achieving a legitimate aim. The legitimate aim is likely to be easy to establish, and a wish to promote good attendance at work – and avoid large proportions of the workforce having to self-isolate – is likely to be sufficient. The battleground in any litigation is likely to be over whether the rule is proportionate, but there is not another less discriminatory way to achieve the same aim of employees not having to self-isolate; if an employee is not vaccinated then they must self-isolate.
We recently surveyed more than 200 employers at an employment law conference that we hosted; 10 per cent were looking to adjust their sick pay rules for unvaccinated staff. However, and as explained above, there is scope for employers to adjust their rules, and particularly not to pay sick pay for employees required to self-isolate. Employers are likely to increasingly consider adjustments such as this as the pandemic continues.
Clive Dobbin is a partner and head of the employment team at Paris Smith