Despite employers like Ocado and IKEA cutting sick pay for unvaccinated staff, write Claire Christy and Christina Morton, others should stop and think before they take that route.

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 need to isolate in these circumstances. But, some employers are reporting unmanageable levels of absence amongst unvaccinated staff. For this reason, they don’t want to pay those who are away from work due to being unvaccinated, 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 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. It is often perceived as somehow unfair or an interference with individual liberty. There could therefore be repercussions beyond the affected group. This could reduce morale and damage staff loyalty, 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.

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Claire Christy is a Partner in the Dispute Resolution team at Withersworldwide. Her extensive experience includes advising both individuals and organisations on employment issues, directorships and shareholdings across a wide range of business sectors.

Christina Morton is a professional support lawyer in the employment team at Withersworldwide. She has over 20 years’ experience as a solicitor advising organisations on employment and discrimination law. She also sits as a part-time Employment Judge.