This week, IKEA’s decision to cut pay for unvaccinated staff who have to self-isolate because of COVID-19 exposure, and in some cases for those who contract the virus as well, will come into force. The move comes as firms struggle with mass staff absences and rising related costs due to the highly transmissible Omicron variant. Sick pay cuts will be implemented at Wessex Water.
But is the move about mitigating staff shortages? Or is it discrimination against the unvaccinated?
Employment lawyer Sarah Ozanne, of CMS, believes it is about tackling staff shortages: “This action [by IKEA] seems more of a reaction to staff shortages and how to manage them than any intended ‘discrimination’ of the unvaccinated,” she said. However, she also warned of complex legal issues and said striking the right balance is difficult.
She made further comment: “…employers should consider whether their actions are proportionate as a means of achieving the aim of getting employees back into work.”
According to news reports, unvaccinated workers at IKEA, who do not have mitigating circumstances, who test positive will be paid in line with company sick pay. Unvaccinated workers, without mitigating circumstances and required to isolate after being identified as a close contact, could now receive as little as £96.35 a week which is the Statutory Sick Pay (SSP) minimum. With average weekly wages at IKEA between about £400 and £450 (location dependent), staff get enhanced sick pay. This massive gap in weekly pay could lead to staff not reporting a close contact and attending work, therefore exacerbating the staff shortage issues by potentially transmitting the virus anyway.
In a statement defining ‘mitigating circumstances’, the retail giant that employs about 10,000 people in the UK said: “Fully vaccinated co-workers or those that are unvaccinated owing to mitigating circumstances which, for example, could include pregnancy or other medical grounds, will receive full pay. Unvaccinated co-workers without mitigating circumstances that test positive with COVID-19 will be paid full company sick pay in line with our company absence policy. Unvaccinated co-workers without mitigating circumstances who have been identified as close contacts of a positive case will be paid Statutory Sick Pay.”
TALiNT International reached out to Olivia Sinfield, a partner at Osborne Clark LLP for comment. She said: “Cutting sick pay for unvaccinated staff required to isolate due to ‘close contact’ is being considered as potentially a more viable measure to address the issue of staff absences than issuing of vaccination mandates in the UK. Vaccination mandates remain, in the UK, largely a legal no go zone except in outlier cases involving health and caring professions. If anything, the mandating of vaccinations is trickier to justify now on health and safety grounds since the Omicron variant swept the nation over the festive period infecting and being transmitted by the vaccinated and unvaccinated alike.”
“When considering cutting sick pay for unvaccinated employees who are self-isolating, employers need to look carefully at what’s in black and white in terms of any contractual sick pay scheme and how this has been operated in the past. Where there is a genuine built-in discretion which has been relied upon in the past then arguments of breach of contract and – worst case scenario, resignations and constructive unfair dismissal claims may be avoided (provided a decent process is followed in rolling out the new rules). In contrast, where sick pay has been paid out historically without much thought around the ‘why’s’ and the ‘for whom’ then hands may be tied, and legal claims follow any attempts now to fetter circumstances where sick pay is paid.”