Jan 2022
As Plan B restrictions lift in the UK once again, there’s been a few headlines surfacing about how employers are treating unvaccinated staff - and it’s a bit of a legal minefield.
Causing controversy
Under current law in England, unvaccinated people must isolate for 10 days if they are in close contact with someone with Covid, even if they do not test positive themselves. But it’s causing a division among the big retailers.
Last September, Morrisons were one of the first to say they would be cutting company sick pay for unvaccinated staff who had to self-isolate due to being in close contact with someone with Covid to Statutory Sick Pay for that period, currently £96.35 per week. Meanwhile, vaccinated staff would be getting full pay.
Morrisons said at the time these measures were put in place to stem rising costs after profits took a nose-dive. Since then, Next, Ocado and others have come forward with similar policies, changing their company sickness policy and treating jabbed and unjabbed workers differently, due to staff taking sick leave resulting in higher costs and understaffing issues for the employer.
Levelling the playing field
However, more recently, John Lewis was one of the first retailers to publicly state they would be paying staff regardless of vaccination status, with John Lewis's operations director Andrew Murphy saying: "When life increasingly seems to present opportunities to create division - and with hopes rising that the pandemic phase of Covid may be coming to an end - we're confident that this is the right approach for us."
It is this point about creating division which is particularly important from a legal perspective. The Equality Act 2010 protects employees from any form of discrimination in the workplace related to a protected characteristic. This includes things like race, age, disability or sex. Where vaccination status is directly linked to a protected characteristic, employers who treat unvaccinated workers differently could potentially (even if unintentionally) be adopting a discriminatory practice.
Equality must be given consideration
In a blog we wrote recently we highlighted that from a legal perspective, it’s difficult to apply a blanket rule to unvaccinated staff, as some may choose not to have the vaccine due to religious reasons or because they are pregnant. Notably Ikea said it would review cases on an individual basis and had clearly identified potential risks of its “no jab – no company sick pay for close contact isolation” strategy.
Employers need to make sure they are not falling foul of the law when navigating this tricky issue. If you would like any support or legal advice, contact Downs Solicitors to see how we can help.
