CORONAVIRUS - 06.10.2021

Cut sick pay for unvaccinated staff?

Employees are currently legally required to self-isolate in England where either they test positive for COVID-19 or are an unvaccinated close contact of someone who has tested positive. However, those who are vaccinated close contacts of a positive case don’t now have to self-isolate and can continue to work. Both to encourage vaccine uptake and mitigate the costs of the pandemic, Morrisons isn’t now paying full sick pay to unvaccinated employees who are close contacts of a positive case - but they will still need to pay at least statutory sick pay (SSP) to them. This cut in sick pay also doesn’t apply to those who haven’t yet had the opportunity to have both vaccine doses nor to those who themselves have COVID-19 symptoms.

If you pay over and above SSP for coronavirus-related self-isolation on a discretionary basis, you could now adopt a similar stance to Morrisons (but do check that sick pay in self-isolation cases isn’t a contractual entitlement). However, be aware of the following two potential issues:

• there’s an increased risk that unvaccinated employees will ignore the legal requirement on them to self-isolate given the reduced pay, not tell you about it and then still turn up for work
• you could face discrimination claims on the grounds of disability or religion or belief under the Equality Act 2010.

If an employee has refused the vaccine because of their religion, you’re at risk of a religious discrimination claim. Most religions don’t disagree with the vaccine though and many religious leaders are actively urging their followers to accept vaccination. If an employee has refused the vaccine because of an anti-vax belief, it’s possible this may be protected as a philosophical belief, provided it meets the tests to qualify for protection, such as it being genuinely held, not being a mere opinion or viewpoint based on the present state of information available, being about a weighty and substantial aspect of human life, attaining a certain level of cogency, seriousness, cohesion and importance and being worthy of respect in a democratic society, not being incompatible with human dignity and not conflicting with the fundamental rights of others.

As for disability discrimination, those that aren’t able to be vaccinated for medical reasons don’t need to self-isolate if they’re a close contact of a positive case, so they’re in the same position here as vaccinated employees, but there’s still a disability discrimination claim risk from disabled employees who can medically have the vaccine but have nevertheless decided against it on health grounds.