Variation on vaccination – Approaches to sick pay post-pandemic

Joanna Lada-Walicki, an independent schools lawyer, sets out the potential pitfalls facing schools when offering reduced sick pay to unvaccinated employees. 

With so-called ‘plan B’ restrictions now lifted, what schools should expect of their staff when it comes to vaccination status and wearing masks is arguably a more difficult area to manage than ever before. 

Currently in England, people who have had at least two doses of an approved Covid-19 vaccine do not need to  self-isolate if they have been in close contact with an infected person.

Recently some major retailers have introduced policies in respect of unvaccinated employees who are required to isolate, as they have been in contact with someone who has tested positive for Covid-19. These policies state that unvaccinated staff will be paid Statutory Sick Pay (SSP) only when isolating, rather than the enhanced rate of company sick pay available to employees who are ‘sick’. This begs the question: should other sectors, including education, follow suit?

The small print

Schools intending to adopt a similar approach would need to handle the situation very carefully and check their staff and HR policies regarding the rules on sick pay.

Those that wish to adopt the same approach, and pay SSP only to unvaccinated staff who are required to self-isolate because they have been in contact with an infected person, will need to consider whether there is a contractual entitlement to an enhanced rate of sick pay.  

Few policies are likely to provide for payment of an enhanced rate of sick pay in circumstances where an employee is not actually unwell and has not tested positive for Covid-19. Many schools will therefore be entitled to pay  SSP only in such circumstances, subject to the caveats set out below.  

The reality 

School leaders should also keep in mind the issue of staff morale and the backdrop of the past couple of  years when considering whether to adopt such an approach. 

Teachers and other school staff have worked tirelessly and adapted incredibly well to the challenges they have faced as a result of the pandemic. The strain they have been put under should not go unrecognised, particularly as attitudes towards Covid-19 and how best to deal with it are shifting at government level.

Furthermore, there may be other reasons why an individual is unvaccinated, beyond personal choice. For example, medical conditions or religious beliefs. A school may be at risk of claims for discrimination if it adopts one approach for all unvaccinated staff.

The application of a policy should take account of exemptions and employees’ reasons for choosing not to be vaccinated. 

The right time?

If a school wishes to adopt such an approach, staff should be given advance notice so that they may plan accordingly and so that the school may demonstrate that it is acting reasonably. 

Finally, the ever-changing Covid-19 landscape and changing rules on isolation must be considered. Reports suggest that all restrictions could be removed as early as mid-March, posing the question as to whether any sudden changes to sick pay policies for the unvaccinated between now and then could potentially do more harm than good. 

About Moore Barlow

Moore Barlow is one of the UK’s leading law firms, focused primarily on meeting the needs of the leaders of fast-moving organisations and businesses including independent schools, private individuals and families and people whose lives have been affected by serious accidents or negligence. 

With 70 partners, 272 lawyers and legal professionals and a total staff of nearly 500, Moore Barlow has offices in Southampton, Guildford, Woking and Lymington, as well as two locations in London (Richmond and the City). 

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