IKEA cuts sick pay for unvaccinated staff who are self-isolating due to Covid exposure
A significant social media backlash followed the announcement by IKEA that only staff fully vaccinated against Covid-19, or those who have mitigating circumstances, will receive enhanced company sick pay in the future when self-isolating due to Covid-19 exposure. Self-isolating workers who are unvaccinated and do not have any mitigating circumstances will only receive Statutory Sick Pay ("SSP"). Unvaccinated workers are still required to isolate for a period of 10 days following exposure. In contrast, fully vaccinated staff are not.
SSP is currently £96.35 per week, which is the minimum an employer must pay employees on sick leave. Depending on whether an employer has a sick pay scheme, employees may be entitled to more. This move by IKEA therefore means those who are unvaccinated and isolating due to Covid exposure will receive less than £100 per week, if no mitigating circumstances apply. This is likely to be significantly less than their normal pay.
IKEA state they will apply the policy ‘on a case-by-case basis’. Without seeing the policy, we cannot say exactly how IKEA will exercise their discretion regarding sick pay entitlement and mitigating circumstances. However, we assume this may involve IKEA investigating the reasons why certain workers have not had the vaccine. This may be a risky strategy if vaccine refusals are connected to, religion, belief, pregnancy and/or disability and therefore falling within the ‘Protected Characteristics’ set out in the Equality Act 2010("EqA10"). For example, indirect discrimination may occur when an employer applies a rule to all employees, but some employees due to a Protected Characteristic are less able to comply with the rule and are consequently disadvantaged. Notably, IKEA has already confirmed that pregnant employees and those who are unvaccinated on medical grounds will still continue to receive full sick pay.
The risk of successful direct discrimination claims by anti-vaxxers on the basis of belief are likely to be low as it is unlikely that being opposed to vaccination will be considered to be a philosophical belief protected by the EqA10. However, such a claim has not yet been tested in a tribunal claim.
No doubt the strategy behind IKEA’s policy is to encourage vaccination to reduce staff absence and ensure a constant service is provided to their customers. We are aware that other employers are following suit, such as Wessex Water, Ocado and the retail store Next. Notwithstanding this, we would recommend employers do proceed with caution to avoid inadvertently falling foul of the complexities of the indirect discrimination provisions of the EqA10 and or the implied duty of good faith and confidence between an employer and an employee inherent in every employment relationship. That said it may be the case that any ‘discrimination’ would be legally justified as being a proportionate measure to achieve a legitimate aim connected to the employer’s business needs. As yet this is untested.
It is interesting that it is during the highly infectious variant of Omicron which has seen a big increase in cases that companies are starting to introduce these policies. They may ultimately prove to be detrimental to staff productivity and morale. They may also come under scrutiny by employment tribunals in the future as a result of claims of breach of contract, unlawful deduction from wages, and potentially unfair constructive dismissal and discrimination. It is hard to predict whether or not a tribunal would accept the qualification placed on eligibility for company sick pay as a proportionate move in light of the pandemic crisis, but many business owners will view the move as commercially pragmatic.
If you would like any further information about unvaccinated staff and sick pay or any other employment related issues, please contact Heather Love.