Ikea and Wessex Water are the latest large companies to announce a pay cut in sick pay for unvaccinated workers. Employers across all sectors have faced vast staff shortages as a result of the Omicron variant. This has placed great strain on productivity and profitability and employers are looking for solutions to mitigate the damage. In this post, we look at Employment law and the COVID-19 vaccine.
In normal times of a downturn in the economy, cost-saving exercises tend to rely on redundancies. The challenges of the pandemic have proved more nuanced, however, as companies seek ways to now plug the short-term shortfall arising from mass absences.
Cutting sick pay for the unvaccinated appears however to be an unprecedented move but one that is becoming increasingly common as companies try to address the pressure.
Singling out unvaccinated workers, however, is not without risk and may not always be a proportionate or the most reasonable way of realising the bottom line. Where companies operate a blanket policy like this then such a move may expose the Company to cases of discrimination on grounds of protected characteristics such as pregnancy or philosophical belief.
The right to a private life remains a principle protected by the Human Rights Act and as long as the Covid vaccine remains unmandated people will have the right of choice. Infringing on that choice by penalising unvaccinated workers is therefore risky when that freedom of choice is protected in law.
Employers should therefore carefully consider the reasons why employees are not vaccinated and whether those reasons fall into the categories of protected characteristics under the equality legislation. Medical exemptions are likely to be covered by the protections under disability discrimination and the very essence of freedom of choice makes a compelling argument in reliance on the protected characteristic of philosophical belief.
It’s important to note that the sick pay cut announced by Ikea is in relation to staff who are unvaccinated and have to self-isolate because of being identified as a close contact.
Unvaccinated staff who are off work because of Covid will still continue to receive full sick pay. The risks inherent in balancing these issues have clearly been acknowledged by Ikea as evidenced by this distinction and their statement that each matter will be judged on a “case by case basis”. Across the pond, however, far bolder moves are being made with “no jab, no job” policies now being routinely rolled out amongst major multinational corporations.
The legality of such policies in the UK in regard to dismissals and to cuts in sick pay will ultimately remain matters to be adjudicated by the courts when inevitably challenged by employees.
For now, employers need to be aware of the risks of discrimination claims that may arise when implementing policies relating to unvaccinated workers.
We hope that you have found this post on Employment law and the COVID-19 vaccine useful. For help with identifying, managing, and mitigating those risks please speak to a member of our employment law team, please call 02079036888 or email contact@davenportsolicitors.com
