Jayne Nevins, senior solicitor for ESP Law, provides further detail into how employers should manage individuals who are not vaccinated…
Employees who have been officially notified – by the NHS Test and Trace service or a local authority contact tracing team – to say they must self-isolate, because they have been in close contact with someone who has tested positive for Covid-19, are legally required to self-isolate for ten days and entitled to Statutory Sick Pay (SSP).
However, employees who have received a ‘ping’ from the app are not legally required to isolate unless, and until, they are contacted by Test and Trace. Although the app will say that they should self-isolate and take a test, this has only ever been advisory and precautionary.
Employers should pay employees who can undertake their role remotely. However, where an employee is unable to do so, the issue of pay can be problematic. If the employee argues that they are available for work, and should therefore be paid in full, the employer's position can say they cannot work for health and safety reasons, and therefore SSP applies.
If someone is entitled to SSP, if they have chosen not to be vaccinated, they remain legally entitled to receive this. The wording of the SSP regulations does not appear to cover those who have been ‘pinged’ as there is no legal requirement to self-isolate.
This depends on the wording of your organisation’s rules – some schemes may be linked to the employee receiving SSP, for example. If this is the case, there is a strong argument to say they would be entitled to receive company sick pay. If the wording links receipt of SSP to company sick pay – and does not require the employee to be ill – this would be relevant. Additionally, the amended SSP regulations do not require someone to be ill to receive SSP, even if they are isolating.
Some policies may require an employee to be ill and clearly state that it will trigger the payment of company sick pay. Therefore, the wording of the company sick pay policy is critical in determining whether or not employees are entitled to it during isolation.
If the wording means they are entitled to receive company sick pay, they should still get it even if they have chosen not to be vaccinated. It is recommended you take legal advice regarding the wording of your policy. If you are still unsure as to the legal requirements for your specific organisation, please feel free to contact us.
If payment of discretionary company sick pay has been made for those who are isolating post-16 August, employers could stop paying those who are isolating or who choose not to be vaccinated – depending on the wording of their company sick pay policy.
You may decide to pay to ensure that employees comply with the Government guidance and/or legal requirements, and do not try to come to work. It is important to treat everyone consistently to avoid grievances or claims of discrimination.
If you choose not to pay someone who is isolating more than SSP, there could also be those who will argue they have a philosophical belief and are being discriminated against. This argument may well not be a strong one, but you could have to deal with grievances that arise as a result. This is an uncertain area of law as it is largely untested in terms of vaccination choices and Covid-19 and is likely to be considered on a case-by-case basis, and dependent on the facts of each circumstance.
Where an employee is unable to be vaccinated for medical reasons, or refuses vaccination on religious grounds, for example, there is authority to suggest that the employee's inability to work is due to an “unavoidable impediment” or external constraint. Therefore, the employer should continue to pay them.
Employers should still pay either statutory or contractual sick pay from an employee who has refused the vaccine and contracts Covid-19. The reason an employee has become ill does not affect their entitlement.
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Senior solicitor, ESP Law Ltd
Jayne has 20 years experience in all areas of employment law. She initially trained as a barrister and cross qualified to become a solicitor 16 years ago. She has specialist experience within the field of healthcare and the hospitality sector. However, for many years she has advised commercial clients in a huge variety of business sectors and so has an in-depth understanding of their needs. Jayne has litigated many complex cases and prior to joining esphr was also an advocate in the employment tribunal.