Can employers penalise staff who fail to get vaccinated?

That, putting it bluntly, is the question raised by the news that IKEA has decided to withdraw occupational sick pack for unvaccinated staff in certain circumstances. In a previous posting we explored the possibility of rewarding staff who come forward for their vaccination. What about the converse situation?

Employers face a number of difficult choices when choosing how to respond to staff absences caused by the pandemic. In doing so they will be aware that vaccination status is not per se a protected characteristic under the Equality Act, so it might be thought there is nothing to prevent employers from rewarding those who are fully vaccinated, or penalising those who are not (even to the extent of dismissing them). Leaving aside the impact of such measures on staff morale and employment relations, things are not that simple for two key legal reasons:

• While vaccination status is not a protected characteristic itself, it is a proxy for a number including disability (some disabled people can’t be vaccinated for medical reasons), ethnicity and religious belief (these protected groups have lower vaccination rates than average)
• Employees are protected from unreasonable management action by the law of unfair dismissal

In practice this means that in most circumstances employers may be called upon to justify any differential treatment between vaccinated and unvaccinated staff, should a worker seek to enforce their rights in the employment tribunal.

We don’t know the details of IKEA’s new policy, which, according to news reports is also being adopted by a number of other employers. Much will depend on precisely how the new policy is implemented, but there are number of issues that any employer would need to address before taking a similar approach including:

• Ensuring that there is no contractual obligation to pay such staff
• Consulting staff on the introduction of the policy and giving staff adequate notice of any changes to sick pay entitlement
• Providing exemptions for staff who cannot be vaccinated for medical reasons, and in other exceptional circumstances

It also raises the practical issue of managers having to have potentially awkward conversations with employees on their vaccination status, and the reasons for them being unvaccinated, (which they may be willing to divulge), asking for proof perhaps, and those managers always acting consistently and sensitively. 

It is worth adding that most occupational sick pay schemes would not require employers to pay staff who are self-isolating because they are close contacts of a person who has contracted COVID, or who are infected but asymptomatic. However, thanks to amendments to the Statutory Sick Pay regime at the start of the pandemic, such staff are eligible for SSP. 

IKEA appears to have followed the example of many other employers and agreed to pay staff occupational sick pay in these circumstances, but on a discretionary basis. Such an approach has clear benefits, particular in terms of preventing outbreaks in the workplace and ensuring that staff do not suffer hardship because of compliance with COVID regulations. However, the current high level of infections, combined with the relaxation of self-isolation requirements for fully vaccinated staff, has clearly led some employers to review such a generous approach.