Reducing sick pay for the unvaccinated

Employers across the country are experiencing difficulties with staffing levels due to self-isolation absences. As such, many are having to take steps to mitigate the impact this is having on their business and its performance, including introducing measures to discourage the absences in the first place.

Employers are under no obligation to maintain full pay for periods of self-isolation (unless contracts provide this); they only have to meet SSP requirements for eligible employees. Reducing sick pay may make employees rethink their actions and behaviours outside of the workplace, including going to large events or not adhering to mask wearing and social distancing guidance. This, in turn, will help reduce the likelihood of them being in close contact with a Covid-positive person, so having to isolate.

This being said, organisations should be careful that introducing these rules does not treat employees unfavourably, particularly those with underlying health issues. Employees who are medically exempt from getting the Covid jab, or those with reasonable other grounds for not being vaccinated (eg 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. Businesses which wish to adopt this 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.

Similarly, where full pay has been given for periods of isolation over the past 18 months to two years, this may become an implied contractual term even though it’s not expressly written into employment contracts. Therefore, employers must undertake the same consultation processes they are obliged to do for any changes to terms and conditions. This includes the requirement to complete collective consultation if the changes impact 20 or more employees. Failure to do so can lead to lengthy and costly claims of unfair dismissal, constructive dismissal, breach of contract and protective awards, in addition to the aforementioned risks of discrimination claims.

In addition to the obvious employment law risks associated with the reduction of sick pay for unvaccinated staff, employers may also face the risks of creating a two-tier workforce, which could have detrimental impacts on the continuation of positive employee relations, leading to unrest and workplace disputes. Such action could also result in reputational damage to the business. Furthermore, it increases the risk of unvaccinated staff members attending work when they might have the virus, thus spreading Covid to others in the workplace. This further increases distrust among colleagues and, ultimately, could lead to higher levels of absence.

The Government has recognised the widespread difficulties associated with staff shortages due to the increase in the numbers of people having to isolate as Omicron cases soar. As a result, from Monday 17 January 2022, the self-isolation period for people who test Covid-positive is being further reduced to five full days. This changes applies in England only; it remains to be seen whether the devolved parliaments in Scotland and Wales will announce similar measures.

To be eligible for early release from isolation, individuals must complete a lateral flow test on day 5 and the start of day 6, with 24 hours between each test. As long as both tests are negative, isolation can end. However, if either of the test are positive, it is possible to complete a lateral flow test every 24 hours until it returns two consecutive negative results.

The amendment to self-isolation rules will likely be a welcomed change for many businesses that are struggling with staff shortages. Others may be pleased by the reduction in outgoings to cover SSP payments for isolating employees. However, the re-opening of the Coronavirus SSP Rebate Scheme will further assist employers to remain profitable.

Organisations may need to consider amending existing policies and procedures relating to contractual sick pay entitlements and eligibility requirements for Covid-related absences. In particular, employers may want to update the evidence required for those who test positive for Covid, especially because a confirmatory PCR test is no longer needed for asymptomatic individuals.

Similarly, employers must ensure they have an effective monitoring system in place to easily understand which of their employees are vaccinated or exempt. This information must be stored in line with normal data protection rules but is essential when determining the pay and time off employees may need if they get Covid or are identified as a close contact of a Covid-positive case.