- Written by
- Faye Shortall, Associate Solicitor
Following the recent discussions surrounding whether it is acceptable to implement a “no jab, no job”, policy, it seems that firms may now be moving toward policies whereby those who are unvaccinated, and required to isolate, will now only receive Statutory Sick Pay (SSP) for the period of time that they are absent from their place of work.
SSP is currently £96.35 a week which will likely have a detrimental financial impact on those required to self-isolate. Currently, those who are fully vaccinated who come into close contact with someone who tests positive for Covid-19 do not have to isolate, whereas those unvaccinated must isolate by law.
Is implementing this kind of policy by Ikea another way to entice the unvaccinated to have a vaccine and is this kind of policy fair? Whilst this move by Ikea could encourage its employees to have their vaccine, it could also discourage testing or self-isolation given the financial impact that only being entitled to SSP would have.
There are legal risks for businesses who differentiate levels of sick pay between different employees. Employers must be mindful that employees may be protected against discrimination and unilaterally amending the terms of an employee’s working terms and conditions, including those relating to sick pay, could cause further issues.
It will only be possible to lawfully withhold contractual sick pay in circumstances set out in the contract or a company’s sickness policy, or where the employee has otherwise agreed. Otherwise, an employer’s action in withholding contractual sick pay will amount to an unlawful deduction from wages.
Even where there is no express contractual entitlement to sick pay, an obligation to pay an employee can be implied into the contract through custom and practice.
If an employee has been receiving discretionary sick pay, it is advisable to give notice of any intention to cease payments. Employer’s discretion is also governed by implied contractual terms, in particular the implied duty of mutual trust and confidence. This, among other things, requires employers to be “even-handed” and not “irrational” in their treatment of employees. Therefore, to impose changes to sick pay in terms of some employees and not others, could give rise to claims against the business.
If you require assistance or advice on the contents of this article, please contact the Employment Team at Thackray Williams LLP 020 8290 0440.
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