Cuts to sick pay for the unvaccinated in the UK – what does the Law say?

The supermarket giant Morrisons has become the latest in a series of large retail employers in the UK, such as Next, Ocado and Ikea, to announce that it will cut pay for unvaccinated workers who are forced to self-isolate after having been exposed to COVID.

All of those companies are limiting payments to unvaccinated workers to the statutory minimum. If those employees later test positive they will be paid full sick pay at the same rate as their vaccinated co-workers.

Each of the employers mentioned has made it clear that there will be exemptions for unvaccinated individuals with mitigating circumstances, such as those who have medical reasons for not getting vaccinated.

Why are companies cutting sick pay for unvaccinated employees?

These moves follow changes which have been introduced by the UK Government to the guidance issued to vaccinated individuals.

From December 2021 vaccinated individuals do not have to isolate if they have simply been exposed to COVID – they only have to isolate if they test positive themselves. Unvaccinated people must isolate for 10 days, even if they do not test positive themselves.

The reduction in sick pay measures are being brought in to try to encourage employees to get vaccinated and consequently to reduce the burden on the employers caused by staff absences; costs which the Morrisons CEO described as “biblical” in scale.

Attitudes towards the unvaccinated vary from country to country – Austria, Germany and Italy, either have, or are planning, to make vaccination compulsory, for the whole population or for specific parts of it. Other countries, such as the UK, are looking to make vaccination compulsory in certain employment sectors, such as health and social care.

Whatever the state of the debate as to mandatory vaccination, there is certainly a widespread increase of pressure on the unvaccinated. In France, a ‘vaccination passport’ (the passe sanitaire) has been required in order to eat and drink at bars and restaurants and to access many other public venues and attractions. More recently the French President, Emmanuel Macron, announced that he wants to ‘emmerder’ the unvaccinated (this might politely be translated as ‘irritate’ – a more accurate and less polite translation can be found online!). A further, recent, high-profile example is the exclusion of Novak Djokovic from the Australian Open due to his vaccination status.

Are cuts to sick pay likely to happen in Jersey?

In Jersey, there is no legislation imposing mandatory vaccinations on individuals. Similar to other jurisdictions, however, there is increasing pressure on individuals to get jabbed.

For example, mandatory self-isolation periods have been reduced to seven days for vaccinated individuals, whilst the period for unvaccinated individuals remains at ten days. We are not currently aware of any employers which have sought to reduce sick pay to the statutory minimum for those told to isolate. However, as the gap between rules for vaccinated and unvaccinated individuals increases, there is a risk that unvaccinated employees may suffer a disadvantage as pressure mounts on employers through staff shortages.

What does the Law say?

Claims for direct discrimination due to one’s vaccine status are unlikely to succeed under the Discrimination (Jersey) Law 2013. Vaccine status is not a protected characteristic under the law.

Whilst there may be an argument that policies relating to vaccine status may give rise to claims for indirect discrimination, for example because certain ethnic groups may be more likely to remain unvaccinated, employers are likely to be able to justify such a policy on the basis that it is required in order to protect their legitimate business interests. The legal test is one of proportionality.

What do employers need to be aware of?

If employers are suffering significant staff shortages as a result of the knock-on impact of isolation periods associated with Covid-19, they must be careful when implementing/updating any policies so as not to place themselves at risk of claims for discrimination and/or any claims under the employment law. This is all the more important given the issue at hand, which involves (understandably) sensitive topics such as one’s right to choose whether or not to become vaccinated, in a society that has not brought in legislation to make vaccination mandatory.

If you have any questions or concerns around sick pay and vaccinations, please do get in touch.