There is no doubt that there are still significant numbers of employees who are less likely to be vaccinated including younger females concerned about the impact on their fertility or pregnancy as well as others with medical concerns as well as ethnic groups, all of whom may be less likely to be vaccinated.

With continuing disruption in the workplace there has been much discussion and debate amongst employers large and small regarding reviewing their sickness absence policies.

Morrisons Supermarket recently announced “….it will no longer pay company sick pay to voluntarily unvaccinated employees who have been ‘pinged’ and have to self-isolate because of close contact with someone with Covid-19….” 

Whilst other employers are reviewing whether to pay company sick pay if an unvaccinated employee catches Covid-19 including Ikea & Next

Can I withhold Statutory sick pay (SSP) from an un vaccinated employee ?

All employees who meet the government qualifying criteria are entitled to SSP and it is illegal to withhold SSP payments from the employee.

Can I claim back SSP payments for Corona / Covid 19 ?

To encourage employees to self isolate SSP is payable for the full isolation period (not subject to 3 unpaid waiting days)

The government’s SSP rebate scheme is being  reintroduced as from mid January 2022 so SME’s with less than 250 employees can reclaim payments of SSP for Corona / Covid 19 absences

Can I withhold company sick pay ?

Many current individual contracts of employment will offer “company sick pay” (a payment over and above SSP for times of illness).

These contracts are unlikely to distinguish between the reasons for the absence, and so if an employee is ill with Covid-19, they are still “ill” and will more than likely still be entitled to company sick pay and to withhold it will be unlawful even for unvaccinated employees.

My contracts state company sick pay is discretionary ?

As an employer you may be tempted to highlight that your employees contracts of employment state that “sick pay is discretionary” and attempt to withhold company sick pay from unvaccinated employees on this basis.

This approach would be deemed to be high risk to as after all; even a vaccinated employee can still catch Covid-19, making it difficult to say an employee is at fault for catching Covid-19 by not being vaccinated and leaving the company open to claims of discrimination.

Furthermore to try to make deductions from an employee’s wages without prior consultation and contractual changes to allow this is likely to be deemed to be an unlawful deduction of wages.

Saying that as with Morrisions, Ikea & Next it can be done, but to do so the correct legal process needs to be followed to limit the chance of any future claims.

On what grounds could an employee bring a claim for withholding SSP or company sick pay ?

Unlawful deduction of wages

To withhold SSP or any currently contracted payments such as company sick pay without the legal right to do so is an unlawful deduction of wages, giving an employee the right to take tribunal action against the company.

Direct / in direct discrimination

To withhold payment to an unvaccinated employee on the basis that someone has corona / covid 19 or is having to self isolate due to it is potentially directly / indirectly discriminatory which could lead to unlimited tribunal awards.