COVID-19 sickness absence update: Can we withhold sick pay from unvaccinated staff?

The UK is fast approaching the second anniversary of ‘Lockdown 1’ and, in that turbulent time, employers have become ever more adept at handling COVID-related sickness absence. However, legal queries on this difficult issue still come thick and fast. We answer some recently received FAQ’s below:

What is the current position on self-isolation?

Currently (at the end of January 2022) the self-isolation rules specify that an individual must self-isolate if:

• they have COVID-19 symptoms
• they have tested positive for COVID-19
• someone the individual lives with has symptoms or has tested positive (although, see below).
• they have been told to self-isolate by the NHS or any other public health authority following contact with someone who tested positive

However, an individual does not need to self-isolate if they live with or have been in contact with someone with COVID-19, if any of the following apply:

• The individual is fully vaccinated
• the individual is under 18 years old
• the individual is taking part or has taken part in an approved COVID-19 vaccine trial
• the individual is unable to have the vaccine for medical reasons.

It is important to note that the current self-isolation regulations run out on 24 March 2021. The Prime Minister has told MPs that he does not expect to renew the rules and it is likely that any self-isolation requirements will end on this date.

When is a self-isolating employee entitled to sick pay?

If a self-isolating employee remains well, and is able to work from home, they should be allowed to do so and should receive their normal pay. This is the case even if the employee has tested positive for COVID-19, provided that the employee is well enough to carry out their duties.

If the employee is unable to work from home, the situation is as follows:

• if an employee has symptoms of COVID-19 or tests positive for COVID-19, they must self-isolate and should receive SSP (and probably also company sick pay).
• If an employee lives with someone who has symptoms COVID-19 or has tested positive for COVID-19 and the employee does not fall into one of the exempt categories (e.g., they are not aged under 18, and are not fully vaccinated) they are required to self-isolate. They will be entitled to SSP (and probably also company sick pay) during the time they are absent.
• If an employee lives with someone who has COVID-19 or has tested positive for COVID-19 but the employee does fall into one of the exempt categories above (e.g., they are under 18, or have been fully vaccinated) they are not required to self-isolate. If the employee chooses to self-isolate for personal reasons, they will be not be entitled to SSP or company sick pay (as they are not ‘sick’ or ‘deemed’ to be sick). Therefore, an employer may require them to take this leave as unpaid leave or holiday.

The Government has specified that an individual is not eligible for SSP if they are self-isolating after entering or returning to the UK and do not need to self-isolate for any other reason. Again, if the individual is unable to work from home, unpaid leave or holiday are potential options.

Can we refuse to pay company sick pay to unvaccinated staff?

The rule that ‘close contacts’ of positive COVID cases no longer have to self-isolate if they are fully vaccinated, has proved helpful for many employers, and has helped to alleviate staff shortages.

However, in other ways, this rule creates a dilemma: It is now far more likely that an unvaccinated individual will be required to self-isolate than an individual who has been vaccinated (and, arguably, this increased likelihood of absence arises from the unvaccinated employee’s own actions and choices).

In light of this, we have been frequently asked whether an employer can treat vaccinated and unvaccinated groups differently in terms of eligibility for company sick pay. A number of high-street names such as IKEA, Morrisons and Next, have announced that they will pay SSP only, and not enhanced company sick pay, to unvaccinated employees who are required to self-isolate. This is a bold commercial decision, made in response to high absence rates and rising costs. However, such a stance carries significant legal risks.

Whether an employer is seeking to withhold contractual sick pay from non-vaccinated employees advised to isolate by NHS Test and Trace, or from employees who have themselves tested positive for COVID-19, the legal principles are broadly similar. Arguably, employees in either situation have failed to mitigate the risk of absence.

However, we would advise employers to be extremely cautious about differentiating company sick pay on the basis that an individual has or has not received a vaccination.

Company sick pay provisions are likely to have contractual force, and sick pay policies do not usually distinguish between different types of illness, or the circumstances in which the illness was contracted.

Some sick pay policies limit sick pay to SSP where sickness/incapacity is due to the employee’s own recklessness or negligence (e.g., participation in dangerous sports). However, even if an employer’s policy contains wording to this effect, it is far from clear whether it would stretch to cover vaccine refusal. There is no guiding case-law on this yet, but an employment tribunal might well be reluctant to label vaccine refusal ‘reckless’ or ‘negligent’ when the topic is so emotive, and an individual may choose not to be vaccinated for a variety of very personal reasons.

Withholding enhanced/company from non-vaccinated employees may also raise a variety of discrimination issues, as some groups have proven more hesitant than others to be vaccinated (e.g., on the basis of religious belief, race/ethnicity, pregnancy/maternity etc.)

It is of course important to make an exception for employees who are medically exempt from vaccination. To avoid claims of disability discrimination, it would also be sensible to consider case-by case exemptions for employers with long term health conditions which cause them to be reluctant to be vaccinated (even if they might not be formally exempt).

A policy of withholding enhanced/company sick pay on the basis that an employee has not been vaccinated may prove difficult to justify, in the event of a discrimination claim. There may be commercial/business continuity arguments (based on the fact that non-vaccinated employees are far more likely to need to self-isolate than others). However, it is entirely possible that even vaccinated employees will fall ill and require time off to self-isolate. Any justification arguments will not be taken at ‘face value’ but will be rigorously examined by an employment tribunal.

There is also a public policy angle, especially as employees who test positive on a Lateral Flow test no longer have to follow this up with a PCR. If non-vaccinated employees know they will lose pay if forced to isolate following a positive test, they may choose not to report positive tests to the government website or inform their employer and come to work in any event. Alternatively, they may just choose to stop testing at all. Arguably then, withholding contractual sick pay may increase COVID risk within the workforce, and may ultimately not succeed as a strategy to decrease staff absence levels.

If you are considering making any changes to your company sick pay provision or require any other support with managing staff sickness absence, it is important to seek legal advice at the earliest possible stage.

Is an employee’s ‘anti-vaccination’ stance likely to be protected under Equality Act 2010?

As mentioned above, any policy or practice that treats non-vaccinated employees differently to their vaccinated colleagues may raise discrimination issues. This is because some groups with protected characteristics may be more hesitant to be vaccinated than others who do not share those characteristics.
However, is not yet clear whether an employee’s anti-vaccination stance might, in itself, be considered a protected ‘philosophical belief’ for the purposes of Equality Act 2010, even if individual does not possess another protected characteristic.

To be protected for these purposes, a belief must be genuinely held, must relate to a ‘weighty and substantial aspect of human life and behaviour’ and must ‘attain a certain level of cogency, seriousness, cohesion and importance’. The belief must go further than being an ‘opinion’ or ‘viewpoint’, and have a real, discernible impact on the choices an individual makes and how they live. Examples of other beliefs that have been held to be protected under the Equality Act provisions include veganism, political philosophies/doctrines such as ‘democratic socialism’ and an ethical opposition to cruel sports, such as foxhunting.

There is no case law yet on the specific issue of whether an anti-vaccination stance would qualify as a protected philosophical belief. There does not appear to be any reason why this should not be possible, but this would ultimately be for an employment tribunal to decide, following an analysis of the individual employee’s personal convictions and motivations.

As an interesting point of comparison, an employment tribunal recently held that a ‘fear of catching COVID-19’ which prevented an employee from attending work was not protected for the purposes of Equality Act 2010 as it was a ‘reaction to a perceived threat of harm’ rather than a fully-formed ‘belief’.

We will update you if any new definitive case-law emerges on this issue. In the meantime however, when any employment-related decision is made that engages vaccination issues, an employee’s anti-vaccination stance should be considered carefully and with sensitivity, as part of the broader factual picture.