Increasing numbers of UK employers are choosing to take a tough line on unvaccinated workers who test positive and need to self-isolate.

Ikea and Next are among the companies to have reduced sick pay for un-jabbed employees who test positive and are self-isolating. Unless there are mitigating circumstances, they receive only statutory sick pay during their absence.

It’s a move that many organisations are considering as HR teams and businesses struggle to cope with Omicron-related staff shortages. Here’s a look at the issue and some of the legal and Corporate Social Responsibility (CSR) implications.

How are organisations adapting sick pay policies?

A rapid rise in the numbers of people catching the omicron variant of COVID-19 has led to staff shortages across the UK. With the retail sector being particularly badly hit, Ikea and Next have chosen to reduce sick pay for staff who are unvaccinated and having to isolate.

Unless there are mitigating circumstances, such as medical or religious grounds, the employee will receive statutory sick pay (SSP) rather than the higher level normally paid by the companies. Similar sick pay policies are increasingly common to cover work absences caused by dangerous sports or elective surgery.

What are the current self-isolation rules for England?

The latest government advice for English employers is that anyone who has a positive lateral flow test should self isolate immediately. It is a legal offence, with fines starting at £1,000, for employers to knowingly allow a self-isolating worker to attend a workplace.

Employees who are unable to work during isolation are entitled to a weekly Statutory Sick Pay (SSP) of £96.35, although many have employment contracts that provide a higher level of reimbursement.

For England, the period required for self-isolation has been reduced to five full days. People who test negative on day five and confirm the result 24 hours later can leave isolation and return to the workplace.

Self-isolation rules vary for each of the devolved administrations – Scotland, Wales and Northern Ireland.

What are the legal factors when considering sick pay?

Beth Hale, a partner with employment firm CM Murray, says that claims of discrimination based purely on a person being opposed to vaccination were unlikely to succeed.

Speaking to the BBC, she said that an anti-vax stance was unlikely to be considered a protected belief under the Equality Act.

She said it could be considered ‘reasonable’ for organisations who have been hit by staff shortages to want to encourage workers to be vaccinated. Any changes have to take into account existing employment terms.

Caution is advised to ensure that policies are not introduced without expert advice and a full risk assessment of the potential consequences. A seven-step process is recommended that includes consultation with workers before any changes are made.

What about CSR considerations?

While it may be legally justifiable, it’s an area that opens up some complex and emotive issues concerning the roles and responsibilities of an employer. It requires HR teams to carefully consider each case; listen to reasons and understand the dilemmas caused by the global pandemic.

Care also needs to be taken to avoid policies that may deter people from disclosing accurate information about their Covid statuses. It requires striking a sensitive balance between promoting vaccination and avoiding discrimination.

Clare Brook, a partner at Aaron and Partners, told People Management why a cautious approach is required with sick pay policies. She said: “Such decisions often trigger debates among workers which could require careful handling by HR and managers to avoid clashes.”

How can HR manage vaccination status?

To implement policies, employers need to maintain accurate data on vaccination status and test results. It’s a major responsibility that many HR teams have found themselves having to manage – striking a balance between duty of care and data privacy responsibilities.

HR teams are faced with a range of dilemmas around corporate responsibility, data collection and GDPR. Some of the most common issues were dealt with at a recent PM Insight event, featuring Adam Reynolds of ELMO UK, and Ben Favaro, Senior Associate at Lewis Silkin LLP.

Getting it right requires a cautious approach that takes into account the sensitive nature of health data that carries a special status within the GDPR legislation. It also places a responsibility on HR teams to have reliable and secure ways to collect and manage COVID-19 related employee information.

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