Can companies stop sick pay for unvaccinated staff?

As some companies set out their plans to cut sick pay for unvaccinated staff, Julian Cox, Head of Employment Law at BLM explains the legal position:

For any business thinking of cutting sick pay for unvaccinated UK staff who are forced to self-isolate because of close contact with someone with COVID-19 they need to tread carefully. Whilst some businesses view this as an attractive way to encourage staff to get vaccinated there are potential bear traps for the unwary including claims of breach of contract, constructive dismissal and discrimination.

Organisations should look at their contractual sick pay provisions to ensure that they allow for such a variation. In the absence of such contractual flexibility there is a risk the employee could resign and claim constructive dismissal. Businesses need to be aware that given the grounds for claiming of dismissal relate to health and safety then the general two year qualifying requirement may not apply so even staff with less than 2 years’ service may be able to claim constructive dismissal.

Organisations also need to be particularly mindful of penalising the following categories of employees/ those deployed:

  • those advised by their GP not to take the vaccine due to underlying health conditions, such as allergies;
  • those who have objections to taking the vaccine due to religious or philosophical beliefs because of the vaccine components; and
  • those for whom the vaccine is not available e.g. as at this present time, younger employees.

Given the nature of these objections, the member staff may be protected from discrimination (both direct and indirect), together with harassment and victimisation under the Equality Act 2010 (the Act) based on disability, religious or philosophical belief or age respectively. Such protection is afforded to workers under the Act, not just employees, and may therefore extend to casual and agency workers. Organisations need to be aware that the Act also affords protection to job candidates.

Businesses therefore need to proceed with caution to avid triggering unanticipated liabilities for their organisation that may be triggered by such a move.

 

Julian’s comments featured in an article in the Financial Times, which you can see here (subscription required).

Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

Who to contact

Julian
Cox

Partner , London

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