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| 2 minutes read

Cutting contractual sick pay for unvaccinated staff – is it lawful or wise?

What do IKEA, Wessex Water, Ocado and Next have in common? Not a great deal, other than when it comes to unvaccinated employees – they are heading in the same direction. 

Those unvaccinated employees will no longer be entitled to contractual sick pay when they are self-isolating because they have been identified as having been in close contact with someone with Covid-19. We haven’t seen any similar public announcements in any of the sectors we advise but they still may be on the same pathway, just with less fuss and media attention!  

Is it a lawful idea?

Many employers, presumably including our happy band above, have, during the pandemic chosen to make discretionary payments under their contractual sick pay schemes when staff are self-isolating. Usually, these schemes state that payment is only made when a member of staff is ill. 

Legally, employers can therefore remove those discretionary payments and revert to the original interpretation of the sickness policy. Self-isolating staff will remain entitled to Statutory Sick Pay (SSP) an employer cannot remove this entitlement. 

Whilst there may not be a contractual issue, there could be discriminatory issues. Staff who are not vaccinated for medical reasons* or because of pregnancy or beliefs held (note that no one has tried to argue that an anti-vaxxer stance is a protected belief as yet), should not suffer a detriment which would include a reduction in pay. 

*in the Government guidance, from 16 August 2021 individuals who are not vaccinated for medical reasons are not required to self-isolate when they are identified as close contact.

Is it a good idea?

I would hope our prime minister would agree that certain choices we make, whilst they may “technically” be lawful, are not necessarily a good idea! 

Employers are caught between a rock and a hard place; address staff absences which are crippling many sectors at the moment, or create a two-tier workforce where resentment builds and staff feel penalised for making a personal choice.  

A good idea is based on sound reasoning and strong information. Maybe a good place to start finding out whether this step is a good idea for your organisation would be to address the following:

  • Will this address your staff shortages by increasing vaccination takeup?
  • What will the “soft” cost be in terms of employee/employer relations?
  • What’s the difference between SSP and contractual sick pay – is there a material difference which justifies this decision especially in light of isolation times decreasing?
  • How would you caveat such a change to ensure that avoided discrimination issues?

If you would value a discussion about any of these issues please feel free to contact Katherine Sinclair.

Ocado and Next have cut sick pay for unvaccinated staff who must self-isolate because of Covid exposure


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