Worthingtons Solicitors

Unvaccinated employees who are required to self-isolate

The position in Northern Ireland currently is if an individual is 18 or over and they are unvaccinated or have one dose only, but are considered a close contact of someone who has tested positive for Covid-19, they will have to self-isolate for 10 days following the last contact with the positive person. They do not need to get a PCR unless they develop symptoms.

This will clearly have an impact on the workforce and subject to the nature of the role, may result in a fit and healthy employee not working for the duration of the self-isolation period. This situation would not be ideal from an employer’s perspective if they are entitled to full pay.

The reduction of the self-isolation periods recently is not relevant to those who are unvaccinated – the period remains at 10 days. Therefore, for the employer, this issue will not be going away any time soon.

Recently there has been several high-profile UK employers, to include IKEA and Next, who have introduced a policy to reduce sick pay for their unvaccinated employees who are required to self-isolate for being a close contact with someone who has contracted Covid-19, and who are asymptomatic and do not meet exemption criteria. They will continue to pay full company sick pay for all employees who test positive for Covid-19.

All UK employees are entitled to Statutory Sick Pay as a minimum, it is then up to the employer whether they enhance that entitlement or not, whether that be full or part pay, through their contract, collective agreement or possibly through policies.

One issue is whether by virtue of the introduction of such a policy, it negatively impacts an employee’s contractual rights, in relation to the amount of pay they receive when signed off sick for self-isolation purposes.

Indirect discrimination is another risk which the employer should be mindful of. This risk is concerned with acts, decisions or policies (broadly speaking) which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic.

The introduction of such a policy in the workplace would unquestionably, on the face of it, cause a disparate impact on specific category of employees with certain protected characteristics. For example, if an employee is disabled, he could argue by being required on medical grounds not to be vaccinated, is penalised when he is forced to self-isolate due to being a close contact. Employees with other protected characteristics such as age, religion, race, sex (pregnant women) etc. could argue that such a policy disadvantage them also.

When introducing a policy in the workplace an employer ought to ensure it does not negatively impact on a certain section of the population. If it did, it may be argued that the policy is discriminatory (indirectly).

An employer can objectively justify the use of the policy, even if it has a discriminatory effect. Employers should take advice on how best to reduce any such risk.

A further issue is whether in fact by virtue of the introduction of such a policy, it negatively impacts an employee’s existing contractual rights, causing them a financial detriment. This could give rise to breach of contract and/or unlawful deduction from wages claims and may also lead to constructive unfair dismissal claims if the employee resigns immediately as a result.

Just how straightforward implementing such a policy will be, is subject to whether an employee has a contractual sick pay entitlement.

The introduction of such a policy is likely to be controversial from an employee relations angle, especially if it places the employee on less favourable terms. There would be risk of discrimination and breach of contract/unlawful deduction from wages claims. Therefore, an employer ought to be prudent when considering this step. Advice should be taken by an employer when considering the introduction of such a policy.

If you require guidance, please contact the Employment Department on 028 9043 4015.

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