Sick pay and unvaccinated staff: what do UK employers need to be aware of?

Article 19 January 2022 Experience: Employment

A new variant of pandemic-related challenges has hit the headlines this month. Several large employers including IKEA, Wessex Water, Next and Ocado have introduced cuts in sick pay for unvaccinated staff who are required to self-isolate after being exposed to Covid-19 (although all of these companies have confirmed that they will maintain normal sick pay for employees who test positive themselves). The current legal requirements exempt fully vaccinated people from the requirement to self-isolate in these circumstances, but some employers are reporting unmanageable levels of absence amongst unvaccinated staff and don’t want to pay staff who are away from work because they have not been vaccinated, unless there are exceptional reasons.

In some ways, these cuts seem an obvious way to encourage vaccine uptake, or at least mitigate the impact of vaccine refusal on workplaces. Other employers may be tempted to follow suit. But should they? There are a number of reasons to stop and think.

Indirect discrimination

Firstly, the press coverage has not been uniformly positive. Arguably, these companies are hitting the headlines for the wrong reasons. Vaccines are a potentially divisive issue and Government statistics give some insight into why that might be. The Office for National Statistics(1) found that overall levels of vaccine hesitancy were relatively low but with a stark difference between levels of hesitancy among White employees (4%) and Black or Black British employees (21%). It was also higher for adults identifying as Muslim (14%) or Other (14%) compared with adults who identify as Christian (4%). Thus, a policy involving cuts to sick pay for unvaccinated staff has the potential to be indirectly discriminatory. The figures also suggest that employers should perhaps start by assessing numbers of unvaccinated staff in their workforces, which might be lower than the news reports would suggest.

Companies may be able to justify potentially discriminatory policies, but the onus will be on them to explain why they are justified, by identifying what they are trying to achieve and why it could not be achieved in a less discriminatory way. This is the danger of introducing a copy-cat policy: what might be justified in one workplace, might not in another. Unless it’s a legal requirement, employers will need a compelling reason to ask employees if they are vaccinated. A person’s covid status is special category data as it’s their private health information and so the employer’s reasons for checking or recording people’s COVID status must be clear, necessary, and transparent.

Reducing morale and damaging staff loyalty

Coercing people into being vaccinated, however this is done, is generally an unpopular approach in this country and is often perceived as somehow unfair or an interference with individual liberty. There could therefore be repercussions beyond the affected group, reducing morale and damaging staff loyalty towards the employer, particularly if the move is insensitively communicated. Staff members who are unvaccinated might furthermore simply ignore the current legal requirements rather than have their weekly income reduced to statutory sick pay levels, making the policy potentially counter-productive to the aim of keeping infection levels low. Highly skilled staff who are difficult to replace might even seek employment elsewhere.

Some employers are currently facing a double whammy of staff shortages and staff absences. But when it comes to individual health decisions, an approach that does not take account of individual circumstances will almost always have unforeseen consequences. Cutting sick pay for those who are not vaccinated may reduce the sick pay bill somewhat, but it will not by itself reduce the levels of staff absence, unless staff choose not to disclose that they have been exposed to Covid, even when required to do so under the Government rules on self-isolation. And if the cost of managing sick pay levels is the alienation of valued employees, the price may prove to be too high. Employers might be better off putting their resources and creativity into encouraging vaccination uptake through education and persuasion, rather than punishing those who are resistant by cutting pay.

(1) https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/healthandwellbeing/bulletins/coronavirusandvaccinehesitancygreatbritain/9august2021

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