Is it legal for Morrisons to cut sick pay for unvaccinated staff isolating for Covid-19?

Big retailers like Ikea, Next, Ocado and Morrisons have reacted to unprecedented levels of staff absences by cutting sick pay for unvaccinated workers forced to isolate after being exposed to (but not suffering from) Covid-19, writes Rhona Darbyshire, head of the employment team at law firm Cripps Pemberton Greenish.

From a legal perspective it is a step that comes with an element of risk which will need to be fully considered before making any final decisions.

For those businesses with formal contractual company sick pay schemes (as opposed to discretionary sick pay schemes), or arrangements where in reality full company sick pay is always paid, there will be a risk of breaching a worker’s contractual rights.

Discrimination claims are also a consideration but provided personal circumstances (such as pregnancy or other medical grounds) are taken into account by employers on a case by case basis then this risk is certainly manageable and this has been the approach taken by those businesses who have recently taken the plunge.

It will also be important for a business introducing such a policy to have a good business rationale for doing so if the policy disproportionately affects some groups of staff more than others, for example on the grounds of a particular faith.

In reality it is likely to be the wider considerations beyond the legal risks that are being carefully weighed up by businesses thinking of introducing such a policy.

Unvaccinated workers who are told to isolate but test negative will get statutory sick pay of £96.35 a week.

For those workers who are unable or unwilling to take that financial hit, the concern will be that it simply encourages them to disregard a requirement to self-isolate, or discourages family members from regular testing.

From an employee relations perspective, it will probably depend on whether a worker is vaccinated or unvaccinated as to how they will view such a change, but for any business seen to be encouraging unvaccinated staff to reconsider their choice and taking steps to reduce the burden on vaccinated staff, is likely to be seen as a positive by the majority of the workforce.