By David Watkinson
MANY employers are experiencing difficulties with staffing levels due to self-isolation absences. This can frequently be seen daily in reduced bus and train services, or in problems with postal services. And whilst these are examples of large national employers it can affect businesses of all sizes.
Because of this, many are looking for ways to mitigate the impact this is having on their business and its performance, and one much publicised way of doing this is to reduce sick pay for the unvaccinated to Statutory Sick Pay levels. We do not wish to enter into a discussion of the wisdom or otherwise of getting vaccinated. However, employers are under no obligation to maintain full pay for periods of self-isolation (unless contracts provide this), but only have to meet SSP requirements for eligible employees. Indeed, some may see this as a way of encouraging behaviour which they think may reduce the number of employees who need to self-isolate.
So what are the respective rights of employers and employees in this?
Firstly, employers must ensure that any rule introduced does not treat employees unfavourably, particularly those with underlying health issues. Employees who are medically exempt from getting the Covid jab, or those with reasonable other grounds for not getting vaccinated, may raise claims of discrimination if they are put at a detriment as a result of following Government isolation guidance. A detriment in this situation includes loss of pay. Businesses which wish to adopt this approach, must first consider the wider impact this may have on staff and put in place adjustments where needed, to avoid any potential risk of claims. It is unclear what are reasonable other grounds. Some people may consider pregnancy to be a reasonable ground, other people may disagree.
Secondly, where full pay has been given for periods of isolation over the past 18 months to two years then this may become an implied contractual term even though it’s not expressly written into employment contracts. Therefore, employers will need to undertake the same consultation processes that they are obliged to do for any other changes to terms and conditions. This includes the requirement to complete collective consultation if the changes impact 20 or more employees. Failure to do this could lead to employees being able to make claims of unfair dismissal, constructive dismissal, breach of contract and protective awards.
There may be other consequences of the reduction of sick pay for unvaccinated staff. For instance, there are the risks of creating a two-tier workforce, which could have detrimental impacts on the employer/employee relationship, potentially leading to unrest and workplace disputes, or to reputational damage to the business. Also, it may increase the risk of unvaccinated staff members attending work when they might have the virus, thus spreading Covid to others in the workplace. Employers would also need to ensure that they have an effective monitoring system in place to easily understand which of their employees are vaccinated or exempt. This information must be stored in line with normal data protection rules, and employees may not be willing to provide this information.
The Government has recognised the widespread difficulties associated with staff shortages due to the increase in the numbers of people having to isolate as Omicron cases soar. As a result, from Monday 17 January 2022, the self-isolation period in England for people who test Covid-positive has been reduced to five full days. To be eligible for early release from isolation, individuals must complete a lateral flow test on day 5 and the start of day 6, with 24 hours between each test. As long as both tests are negative, isolation can end. If either of the test are positive, it is possible to complete further lateral flow tests every 24 hours until two consecutive tests results are negative.
This amendment to self-isolation rules may be welcomed by many businesses that are struggling with staff shortages. Others may be pleased by the reduction in outgoings to cover SSP payments for isolating employees. However, the re-opening of the Coronavirus SSP Rebate Scheme will further assist employers to remain in business.
Finally, employers may wish to consider amending existing policies and procedures relating to contractual sick pay entitlements and eligibility requirements for Covid-related absences. For instance, they may want to update the evidence required for those who test positive for Covid, especially because a confirmatory PCR test is no longer needed for asymptomatic individuals.
Whilst, perhaps, we should be looking at this in the same way as we look at influenza, there are still many problems resulting from this virus.
WatkinsonBlack have considerable experience in all areas of taxation and business services, including providing a very cost-effective payroll bureau service. If you want to arrange a no-obligation initial meeting on any taxation or accounting matter then please contact us. Our office is now open during all normal office hours. Please note that these ideas are intended to inform rather than advise and you should always obtain professional advice before taking any action.
