Fonseca Law Solicitors

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Are employers allowed to penalise staff who haven’t been vaccinated?

Gloved hand holding an mRNA vaccine bottleBack in January, IKEA announced that they were cutting sick pay for unvaccinated staff who were forced to self-isolate. Naturally, the release of this news led the media and other businesses to question whether this was both a legal and moral thing to do.

When members of staff are forced to remain absent from work while self-isolating due to the pandemic, employees can find themselves in a tricky situation with some difficult choices to make. Businesses will be looking to ensure they are handling things exactly as the government would like them to, or to at least be aware of any guidance that the government has put in place.

While deciding, businesses are likely to be aware that a member of staff’ vaccination status is not a protected characteristic under the Equality Act, therefore it would appear that employers are able to freely reward members of staff who are fully vaccinated or penalise members of staff who have opted against the vaccinations - sometimes to the extent of dismissing them.

Besides the likelihood of this having an impact in one way or another on staff morale in the workplace and employment relations, two legal points make things not quite so straightforward.

Point 1:

Although vaccination status isn’t itself a protected characteristic, it is a proxy for disability (when certain disabled people should not be vaccinated due to medical reasons), ethnicity and religious belief (protected groups have lower vaccination rates).

Point 2:

Employees are protected from unreasonable management action through the law of unfair dismissal.

What does this mean?

It means that in most circumstances, should an employee seek to enforce rights through an employment tribunal, employers may be asked to justify differential treatment between members of staff who have not been vaccinated compared to members of staff who have been vaccinated.

Other businesses quickly moved to adopt similar policies, such as Morrisons and Next. Before taking a similar approach there are a number of things that an employer should address, such as:

  • Checking employee contracts to ensure that are no contractual obligations to pay such staff in place.
  • Consulting all staff in the introduction of any new policy and providing them with adequate notice of any changes to their sick pay entitlement.
  • Providing suitable exemptions for any members of staff who cannot be vaccinated for medical reasons, and in any other exceptional circumstances.

Furthermore, it also raises the practical issue that managers will have to face, as they will no doubt have to hold awkward conversations with certain members of staff to discuss their vaccination status, reasons for why they are unvaccinated - of which staff may not want to disclose - and requesting proof of their status, all conducted in a consistent and sensitive manner.

Unvaccinated staff entitled to SSP when based on medical grounds

It should be noted that most occupational sick pay schemes wouldn’t require employer to pay members of staff who are at home self-isolating due to them being close contacts of a person who contracted Covid-19, or who are infected but showing no symptoms. However, amendments to the Statutory S-ck Pay regime that came into force at the start of the pandemic means that such staff are currently eligible for SSP.

IKEA followed the example of many other employers by agreeing to pay staff occupational sick pay in these circumstances, but all at their own discretion. There are clear benefits to taking such an approach, not least because it can help to prevent outbreaks among staff in the workplace while ensuring that staff do not suffer hardship because of compliance with Covid-19 regulations.

With that said, during high levels of infections, along with a more relaxed guidance to self-isolation requirements from the government when it comes to full vaccinated staff, this has clearly led many other employers to review whether they can offer such an approach.

If you’d like legal advice surrounding employment law, don’t hesitate to get in touch with our team of expert solicitors here at Fonseca Law in Ebbw Vale, South Wales. Contact us today by calling 01495 303124, e-mailing enquiries@fonsecalaw.co.uk or by completing our online contact form.