Two years into the COVID-19 pandemic, the message from the Government is increasingly that we will need to learn to live with the virus. That will be music to the ears of many employers, who have been grappling with self-isolation requirements and the return of the requirement to work from home. A significant issue for many employers has been staff shortages caused by the self-isolation requirements which apply to unvaccinated staff - so perhaps it's not surprising that employers are losing patience with unvaccinated staff and treating them less generously. For example, IKEA and Next have become the latest big employers to confirm that unvaccinated workers without mitigating circumstances who have to self-isolate after close contact with a positive case will only receive statutory sick pay, rather than contractual sick pay.
IKEA has emphasised that they will look at this on a case-by-case basis - but is the policy lawful at all? The answer isn't clear, but there are certainly legal and practical risks.
The biggest legal risk is likely to be indirect discrimination claims on the basis that certain groups are less likely to be vaccinated - whether due to medical conditions (which may amount to a disability), anti-vaccination beliefs (potentially a protected belief in some cases), pregnancy or race. The question would be whether the employer could justify differentiating between vaccinated and unvaccinated staff in this way - and cost alone is unlikely to justify the difference in treatment, particularly for large employers with financial reserves. It's likely that employers with such policies will make exemptions where there are genuine medical reasons - but if they don't make exemptions on other grounds, they will essentially be trying to distinguish been legitimate and illegitimate reasons for deciding not to be vaccinated, which is an ethical debate many employers would rather avoid.
But there's also a more fundamental issue for employers - are such policies fair and what impact do they have in practice? They could cause significant resentment - even among vaccinated staff - by giving the impression that the employer is sitting in moral judgement over individual workers' medical choices. Is an unvaccinated worker less 'deserving' than one who gets injured doing extreme sports and needs to take time off to recover? And on a practical level, such policies may make it less likely that workers will notify their employers if they are required to self-isolate, increasing the risk of transmission to other workers.
Employers looking to make similar changes will need to weigh up the risks and benefits carefully and ensure that any policy is clearly communicated to staff - this is one instance where IKEA might need more than a cheery diagram and an Allen key.
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