No jab, no sick pay? Morrison’s cuts the amount paid to unvaccinated staff
Morrison’s supermarket has announced that it will no longer pay company sick pay for employees who are unvaccinated if they are notified to self-isolate. Instead, these employees will only be entitled to statutory sick pay (SSP) should they find themselves in this scenario.
The question therefore arises: what does this mean for the future workforce and requirements for vaccinations at work?
The latest on mandatory vaccination
Legislation, as at this date, only requires mandatory vaccination of employees working in care homes in England (set to commence on 11 November 2021).
There is ambiguity surrounding potential legislation of widespread mandatory vaccinations; however, there has been increased discussion and drafting of legislation relating to ‘vaccine passports’.
The introduction of mandatory vaccinations in order to attend events or visit social hotspots has been received with high criticism. Despite this, the UK and Scottish Governments intend to move forward with implementing systems of checking an individual’s vaccination or immunity status as a condition for entry.
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Sick pay at employers' discretion
SSP applies to individuals who are incapable of working due to having to shield or self-isolate, whether due to contracting the virus or being notified as a close contact. The Statutory Sick Pay Regulations were amended last year with the introduction of the additional coronavirus measures to protect employees. Paying contractual sick pay on top of or instead of SSP can be done – but it’s at employers’ discretion.
There is also the added possibility of employment contracts having a limiting clause on the subject of sick pay, whereby the employer may not be under an obligation to pay sick pay where the employee is sick as a result of their own recklessness, but to use such a limiting clause within these circumstances is unlikely.
Morrison’s has stated that it hopes implementing such a policy will encourage employees to take up on the offer of vaccination and also help to recoup some of the previous year’s losses. Unite the Union have notably objected to this, stating they believe the policy to be incompatible with equalities, human rights and constitute ethical breaches. One member of staff told the Guardian “it feels almost like the company is coercing people into getting the jab”.
Although criticised, there has been no legal objection raised yet.
The risks of reverting to SSP
Whilst some might say that offering full pay until now is arguably pretty generous, risks are associated with cutting back to SSP only. First and foremost, employees may refuse to isolate if they are worried about a reduction in pay, which could lead to a health and safety risk to all other employees.
Furthermore, there may be potential scope for indirect discrimination claims if “mandatory” vaccination can be seen to amount to a provision, criterion or practice (PCP) which a person with protected characteristic, as defined by section 4 of the Equality Act, is placed at a significant disadvantage compared to those who don’t share the same characteristic. Whether any such claims will arise and, if they do, what the Tribunals will decide, only time will tell.
With the everchanging landscape of vaccinations and COVID guidelines, it is an area to watch. As it stands currently, there is no legal requirement to force employees to get vaccinated (subject to the exception outlined above). Employers can choose not to pay company sick pay where unvaccinated staff are required to self-isolate as a result of being notified as a close contact, provided they are consistent in their approach. This may be a move useful for encouraging uptake of the vaccination and saving costs, but caution should be exercised – and advice sought – before radical changes to sick pay entitlement are imposed.
If in doubt, seek advice
Our Employment Law experts can provide straightforward, practical advice on issues concerning employees’ vaccination status, as well as draft legally-compliant policies on your behalf to help you proactively prevent problems and make your position clear.
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