A post-Christmas return to work has been challenging for employers this year with COVID restrictions, self-isolation and difficulties with recruitment. Thrings’ Employment team has set out answers to some of the most pressing issues faced by employers at this time.
Question: where fully vaccinated staff are a close contact of a positive COVID case, there is no requirement for them to self-isolate and they could come to work.
In contrast, an unvaccinated colleague would be required to isolate and might be entitled to sick pay as a result.
We think this is unfair on our vaccinated staff. Given that the decision not to take the vaccine is usually a personal choice, can we decline to pay unvaccinated staff in these circumstances?
Answer: entitlement to contractual sick pay would depend on the terms of the contract of employment but it is clear that SSP would be payable to the unvaccinated colleague.
Employers could look to review their policy on sick leave, should that right have been reserved, especially any that might be COVID specific.
However, employers should bear in mind that withholding any enhanced sick pay entitlement in respect of unvaccinated workers may lead to the workers being less scrupulous about isolating for the required period and thus risking the health of co-workers.
Withholding enhanced sick pay from unvaccinated workers may also open the door for discrimination claims under the Equality Act 2010, for example where the employee has declined the vaccine for medical reasons or due to religious views or beliefs.
If you would like to chat more about any of these employment issues please contact our employment team.
