6:29 PM 10th January 2022
Check Terms Of Sick Pay Schemes Before Refusing Sick Pay To Unvaccinated Employees Marie Horner, partner in employment law at Langleys Solicitors warns to check terms of sick pay schemes before considering refusal of sick pay to unvaccinated employees
“Ikea has recently announced that it is dropping pay down to just statutory sick pay for unvaccinated workers who are forced to self-isolate, except for those with mitigating circumstances. Putting aside views on the rights or wrongs of such a decision, many employers may well now be considering whether they could also do this, perhaps with a view to improving attendance. However, before considering taking such a step in your own business, a number of points must be considered carefully.
“One would be quite hard-pushed to find a company sick pay scheme that has expressly and pre-emptively excluded the right to receive company sick pay in circumstances where a worker is unvaccinated against Covid-19 and is required to self-isolate due to exposure; such foresight several years ago would have been truly remarkable!
“Most contractual sick pay clauses generally provide that workers will receive company sick pay if they adhere to the terms of their contract of employment and to the requirements of the sick pay policy within the company handbook.
“Most contracts and policies do not expressly define what 'sickness' is for the purpose of receiving company sick pay, but, rather, the policy often impliedly adopts the definition of sickness for the purpose of assessing eligibility for statutory sick pay. In that scenario, without anything clearly to the contrary, there is an argument that, if a worker qualifies for statutory sick pay, he/she is also entitled to enhanced company sick pay where such provision is present in the contract; to refuse to pay it to unvaccinated individuals might place the company in breach of that contract.
“Of course, if enhanced sick pay was paid to those staff required to self-isolate during this pandemic as a discretionary gesture during difficult times, and there was never a contractual entitlement to the additional pay in the first place, it would be far easier to now withdraw that discretion and enhance pay on a more selective basis in response to the changing circumstances. Although we are not privy to the specific contractual terms of the case, it seems more than likely that this is the starting position of those companies that are taking this step.
“In essence, if you have a formal contractual company sick pay scheme, it is imperative that the terms of that scheme are checked before any decision can be taken upon withholding company sick pay for unvaccinated staff on a period of self-isolation. Indeed, if you expressly have purely discretionary sick pay terms in your employment contracts, but the reality is that you always enhance pay for staff on sick leave, beware the pitfall of assuming that your scheme remains discretionary – it may not and advice should be taken before any decisions are made.”