Can employers reduce sick pay for unvaccinated staff?

No doubt this is a hot topic now. Several household names have taken the policy decision to cut sick pay for unvaccinated staff who must self-isolate because of COVID exposure. In this blog I will just keep it simple.

To be clear here in the first instance what these household names have done is to review its company sick pay policy and not statutory sick pay. This now leads me to address the following:

What is the difference between Statutory Sick Pay and Company Sick Pay?

• Sick pay stems from two main sources:
• Statutory Sick Pay (“SSP”) that provides for payment of a modest amount to all qualifying employees; and
• Company Sick Pay is an additional benefit

Employers must pay SSP where employees qualify for it, this is non-negotiable and companies that cannot afford company sick pay stick to this entitlement. Company Sick Pay is an additional benefit that is written into a contract of employment or just paid at the employer’s discretion out of goodwill. Its all in the wording and if it is clearly stated in the employee contract that the benefit can be amended or withdraw then employers can adopt such an approach under contract law. Most companies have this clause worded accordingly.

This is an emotive subject, and some may view it discriminatory. If an employee can show for example 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.

In summary however, 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.