Types of sick pay
There are two types of sick pay – statutory and contractual.
The rules for statutory sick pay apply to everyone who meets the conditions to receive it. There is no differential between vaccinated or un-vaccinated employees. Therefore as a minimum, provided the conditions are met and unvaccinated person would expect to receive statutory sick pay. The exception in relation to entitlement to SSP for self-isolation is where it is required because of international travel restrictions but the exception applies to both the vaccinated and un-vaccinated.
Contractual sick pay will vary from employer to employer. Employers seeking to differentiate contractual sick pay between employees who are vaccinated and unvaccinated may run into some difficulties.
Which employers have cut pay for unvaccinated employers?
From January 2022 Wessex Water are reported to be only paying unvaccinated employees, without a medical exemption, mitigating circumstances or confirmed vaccination appointment Statutory Sick Pay rather than contractual sick pay where they have to self-isolate because they have had a close contact with someone who has tested positive. Ikea put in place a similar policy from September 2021. However, if an unvaccinated person has tested positive for Covid-19 they are still being paid full contractual sick pay – because they are in fact sick.
Note the exceptions in relation to the policy they have implemented. Having a blanket policy that all unvaccinated employees received SSP would potentially give rise to claims for breach of contract and/or discrimination claims.
What if I can’t have a vaccine?
Some employees are not able to have the vaccine because of underlying medical conditions. Therefore, denying them full contractual sick pay if they had to self-isolate may give rise to a claim for disability discrimination. Some employees may have religious or philosophical reasons for not having the vaccine and again denying them full contractual sick pay may give rise to a religious discrimination claim. Possibly a little more of a stretch, but still a consideration, statistics indicate younger people have not taken up the vaccine and so there may be arguments to be made regarding age discrimination.
Additionally, employers need to consider the wording of the contractual sick pay policies. An employer cannot unilaterally change terms and conditions of employment. Any flexibility clauses have to be used reasonably with the benefit of the doubt in the employees’ favour. Therefore, just because Wessex Water and Ikea have implemented such policies does not mean it would necessarily be open to all employers to do so without consequence.
To make a change in breach of contractual provisions could entitle an employee to bring a breach of contract claim or look at a constructive dismissal claim. The latter is where an employee is entitled to treat the contract of employment as terminated as a result of the employer’s fundamental breach of the contract and resigns as a result.
Can it amount to constructive dismissal?
In relation to a constructive dismissal claim an employee may not just be looking at the wording of the contractual sickness policy/clauses. An employer also has implied duties of mutual trust and confidence. This implied duty of trust and confidence means that the employer should not act in a way that is likely to destroy trust and confidence and this can include a requirement that an employer does not act capriciously in relation to pay. Every case will turn on its facts.
Next Steps
Like many of the Covid-19 related employment changes until we have some case decisions or some specific Covid-19 legislative requirements it is not possible to definitively state what may be right or wrong but there are some significant red lags which caution against such a policy. Any employer wishing to start differentiating between vaccinated and un-vaccinated staff should do so with extreme caution and only after taking specific legal advice.
Contact Waldrons Solicitors
If you are an employer considering this issue, or you’re an employee affected by this issue, please click here to arrange for one of our specialist Employment Solicitors to contact you.
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