COVID-19 rules across all UK nations currently mandate that all unvaccinated people who come into close contact with someone who has tested positive for Covid must self-isolate for 10 days even if they do not test positive for the virus themselves. These rules do not apply to those who are fully vaccinated, resulting in unvaccinated employees requiring more time off work than their vaccinated colleagues.

As many companies continue to try to navigate the never ending hurdles and decision making that the pandemic has presented them, there is now the question of whether they are going to differentiate between the contractual sick pay benefit that they provide to those who are fully vaccinated compared to those that are not.

Some have wasted no time in announcing that they will be removing contractual sick pay for unvaccinated workers who are instructed to self-isolate by test and trace but who test negative for Covid. This leaves many employees surviving on the minimum legal sick pay of £96.35 a week.  Arguably, they are not sick but if their contract provides for contractual sick pay would employers be held to be in breach?

Morrisons, Ocado, Next and IKEA are amongst those who have confirmed they will cut contractual sick pay for those unvaccinated members of staff who are legally required to self-isolate. Those who are unvaccinated due to mitigating circumstances – and those who are unvaccinated but who test positive – will still be entitled to full contractual sick pay.

In contrast another large employer, John Lewis, has gone against this trend. Its executive director has recently confirmed that they will not be following in the footsteps of other major retailers, saying: “when life increasingly seems to present opportunities to create division – and with hopes rising that the pandemic phase of COVID may be coming to an end – we’re confident that this is the right approach for us.” The firm went on to state that: “it doesn’t believe it is right to create a link between a person’s vaccination status and the pay they receive.”

Whilst this will only probably affect those that are unable to carry out their duties from home, it is yet to be seen whether such changes to company sick pay policies will be challenged in the Employment Tribunals and how the unions will react. Much may rest on the exact wording of individual contracts of employment which would not have envisaged such scenarios in their initial drafting. However, given the backlog in tribunals cases it will some time before we find out how the Tribunals will deal with such unilateral changes to employees’ contracts.

Shiva Shadi is Head of Employment at Davis Blank Furniss. Please click here for her profile and contact details.


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