Charlotte Davies

+44 (0)1223 785267 cdavies@greenwoodsgrm.co.uk

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COVID-19: Large employers cutting sick pay for unvaccinated staff

Employment / 13 January 2022

Earlier this week, retailer Ikea made the headlines for cutting sick pay for unvaccinated staff who need to self-isolate because they have been exposed to COVID-19.  Unvaccinated co-workers without mitigating circumstances who have been identified as close contacts of a positive case will be paid statutory sick pay only, rather than enhanced company sick pay.

Ikea recognised that this was an “emotive topic” and said that all circumstances would be considered “on a case by case basis”.

The move appears to be a reaction to the severe staff shortages businesses are now facing as a result of the Omicron variant.  However, Ikea is not the first employer to have made this policy change – Wessex Water and Morrisons have recently made similar decisions.  It may well be the case that we are now seeing a shift in the way employers are handling the pandemic.

What are the legal risks?

Changing sick pay policy in this way is not without risk.  We have highlighted the key risk areas below:

—  Discrimination – our previous article highlighted the discrimination risks involved with Covid-19 vaccinations.  Unvaccinated workers with a specific protected characteristic (such as disability, pregnancy, religion or belief) whose sick pay is cut may have grounds for a discrimination claim if they can show they have been disadvantaged by the change in policy and if their employer is unable to objectively justify the treatment.  A financial saving, or the avoidance of cost, will not always amount to a legitimate aim;

—  Breach of contract – existing contractual provisions concerning sick pay will need to be very carefully checked and legal advice sought before any changes are made otherwise employers run the risk of breach of contract claims;

—  Grievances – as Ikea has recognised, this is a highly emotive area and is likely to create workplace conflict and debate between workers.  HR teams can expect to receive grievances and will need to handle these carefully and sensitively to prevent them escalating; and

—  Data protection issues – cutting sick pay for unvaccinated workers will lead to employers, and possibly other staff, finding out about an individual’s vaccination status.  Vaccination status constitutes a special category of personal data under the Data Protection Act 2018 and employers would need to be able to show that they can rely on two lawful bases for processing such data in order to comply with the UK GDPR.

We would urge you to take legal advice if your organisation is considering changing its sick pay policy.

 

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This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: mailinglists@greenwoodsgrm.co.uk

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