Unvaccinated Sick Pay – The Need for Caution

Posted:7th February 2022

Sick Pay for Unvaccinated Self Isolating Employees

A number of high profile Employers have recently announced their decision not to pay contractual sick pay to employees absent from work due to the requirement to self isolate and who have not received vaccinations for coronavirus.

Employers including IKEA and MORRISONS justify their decision by pointing to the need to protect the majority of their employees who have been vaccinated and the financial toll taken by the pandemic, but their stance is by no means risk free.

Firstly, any employee employed under a contract which includes an agreement to pay enhanced company sick pay may argue that their contract does not allow such a radical, unilateral change to their terms and conditions and that any imposition of a change to them amounts to a breach of contract by the employer. Potentially allowing the employee to resign without notice and argue that they have been forced out of their job – a so called ‘constructive dismissal’. Where an employer’s decision to pay enhanced contractual sick pay is ‘discretionary’ this may be less problematic, but any employer will need to be willing to argue that their discretion has not been exercised unreasonably.

Secondly a decision to withhold contractual pay for reasons connected to an employee’s vaccination status could be discriminatory if an employee is able to show that the financial disadvantage or ‘detriment’ suffered is associated with a ‘protected characteristic’ which could encompass their health or beliefs.

It is for these compelling reasons that every employer considering the introduction of a similar policy should acknowledge the risks and make it clear that decisions on whether to pay contractual pay or statutory sick pay only should be made on a case by case basis and not (as may appear to be the case from the headline publicity which has followed these announcements), as blanket decisions affecting all unvaccinated employees.

For advice on how to introduce an effective policy please contact Graham Shannon on 0191 500 6989 or email [email protected].