SALLY-ANNE ANDERSON says employers cutting sick pay for unvaccinated staff raises many questions
With the First Minister announcing that the extended Covid protection measures in Scotland were being removed, we are, hopefully, looking at what could be the start of a more normal way of life. Whilst this is extremely positive, it does not mean that Covid has gone, or that we won’t still be dealing with the residual effects of the pandemic for some time.
It seems that it is here to stay and part of learning to live with it means employers will need to adjust to how they manage the ongoing impact on their staff without breaching any relevant employment laws and regulations.
One major area of contention during the pandemic has been the treatment of those vaccinated and those who are not. On this subject, a more specific issue has raised its head in recent days; that of employers cutting sick pay for unvaccinated members of staff who are forced to self-isolate following a negative test result.
High street retailer Morrisons has joined the rising number of employers who have introduced this or similar policies and it has certainly raised some concerns, especially amongst employees and trade unions.
The reduction in sick pay does not apply to Covid-19 positive staff members regardless of their vaccine status, nor does it apply to those who are medically exempt from receiving the vaccine.
It is this divergence in treatment between vaccinated and unvaccinated staff members that poses a myriad of complex questions as to the legality of such an approach.
The first key point is that sick pay may be a contractual benefit employees are entitled to under their contract of employment. If this is the case, sick pay is a contractual right and cannot be unilaterally amended or withdrawn by the employer without the employee’s express agreement. Therefore, careful consideration will be required to circumvent a possible unlawful deduction of wages or breach of contract claim.
Furthermore, a policy reducing sick pay entitlement for those who are unvaccinated may disproportionately impact certain groups of the workforce, ultimately, giving rise to potential indirect discrimination claims. Broadly speaking, discrimination occurs when someone with a protected characteristic is placed at a particular disadvantage compared to those without the protected characteristic.
Although vaccine status is not a protected characteristic there may be risks in relation to religion or belief in which case an employer would have to be able to show that such a policy is a proportionate means of achieving a legitimate aim.
It is worth noting that a wish to save costs alone is not a legitimate aim, and as such an employer must be able to prove that there is a real need for the policy and that there are no less discriminatory options available. It is vital that employers should take a case-by-case approach and ensure that similar cases are treated in the same manner to help avoid potential discrimination claims.
Finally, as vaccine status is considered ‘sensitive data’ for GDPR purposes, this means that it requires a greater level of protection. Consequently, employers will need a robust system in place when processing such data to ensure they are compliant with the GDPR and there is not a data breach.
Vaccine status is extremely topical right now, and it is likely to be the centre of a great deal of legal debate in the near future. We suspect that these policies will become ever more prevalent as more employers decide to follow suit.
It will not have gone unnoticed by most employers, particularly small and medium sized businesses who may not have their own in house employment specialists, that employment law is complex at the best of times and falling foul of the rules can be an expensive and difficult experience.
Life is changing as we learn to live with Covid and the way we manage employment issues also needs to adapt.
It goes without saying that if you look after your people, they’ll look after you.
Sally-Anne Anderson is head of employment law at Aberdein Considine
Leave a Reply