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Thursday, 13 January 2022 19:24

Vaccination Discrimination

Covid-19 continues to hog the headlines in one form or another. Despite the Omicron variant having less severe symptoms, its contagiousness has created a new wave of issues. The number of employees in the UK who have the disease and therefor need to self-isolate is affecting productivity and supply chains, and we’re seeing a marked effect at the NHS which is experiencing record staff absences.

Owing to the restrictions placed upon us in response to the onset of Omicron, we are sensing a rise in ill-feeling and disgruntlement from the general public towards those who have chosen not to get their jabs. You would have to say that based on the available evidence, there is a case to be made.

Whilst it can be difficult at times to fully make sense of ONS figures, the ONS website does say, “Over the whole period (1 January to 31 October 2021), the age-adjusted risk of deaths involving COVID-19 was 96% lower in people who had received a second dose at least 21 days ago compared with unvaccinated people.”

The high profile case involving Tennis star Novak Djokovic, is a case in point. His bid to be allowed to enter Australia to defend his Open title there has, it seems, polarised opinion. The sports star has made no secret of his aversion to receiving the Covid vaccine and although some have spoken out in his defence, public opinion appears less supportive. We wonder how much today's decision to revoke Djokovic's visa was influenced by public opinion.

Relating the issue back to Employment Law, you may have come across the stance adopted by a number of employers against non-vaccinated employees.

Ikea, Wessex Water and now the retailer Next, have made the decision not pay company sick pay for those employees who are absent from work for Covid related reasons, and who have chosen not to receive the vaccine. This may be a backhanded way to encourage vaccine uptake amongst team members as well as appease colleagues who may claim unfair treatment.

Whilst it is the company sick pay element that has been withheld and not SSP, which is a statutory right, we would advise employers who wish to follow suit to do so with caution.

In all circumstances, consider any such action on a case-by-case basis which includes speaking with the employee to help understand why they are not vaccinated. Failure to do so you will expose you to a risk of discrimination claims under the Equality Act. The obligation is on the employer to objectively justify every individual case where it intends to play less sick pay to an unvaccinated individual.

You must continue to pay SSP. Ikea are only withholding the company sick pay element.

Ensure that employees who are fully vaccinated, and those who are unvaccinated owing to certain mitigating circumstances, such as pregnancy or other medical grounds, continue to receive full company sick pay while self-isolating, if it is your usual policy to pay it. Unvaccinated workers, who do not have mitigating circumstances, who test positive should be paid in line with company sick pay.

At Ikea, it is only unvaccinated workers, without mitigating circumstances who are isolating as a close contact, that will be affected by the decision.

One more thing. Remember that if you record information on vaccination status, this is classified as Special Category Personal Data under GDPR and you must have a good and communicated rationale for doing so. Employees need to give their explicit permission for you to hold such data.

Whilst we’re on the subject, there have been a number of recent changes to government guidance on self-isolation and absence. Here’s a summary which is accurate at the time of writing but with rules changing almost daily, it’s always worth checking on the .gov website.

Sick Absence Certification
If an employee goes off sick on or after 10 December 2021, up to and including 26 January 2022, you cannot ask them for proof of sickness until they have been off for 28 days or more. Employees can normally self-certify sickness absence for the first seven days. This has temporarily changed (for the duration of the defined period above), in that they can self-certify for 28 days. This is to enable GPs to focus on the COVID-19 booster programme https://www.gov.uk/guidance/statutory-sick-pay-employee-fitness-to-work

Self-Isolation
The self-isolation advice for people with coronavirus (COVID-19) has changed. It is now possible to end self-isolation after 6 days, following 2 negative LFD tests taken 24 hours apart. The first LFD test should not be taken before the fifth day.

If you have COVID-19 symptoms you should stay at home and self-isolate immediately. You should arrange to have a PCR test as soon as possible. If this PCR test result is positive, you must continue to self-isolate.

If you do not have COVID-19 symptoms but test positive for Covid with a lateral flow test (LFT) kit, there is no longer any need to book a PCR test to confirm that result.

If you have been vaccinated with a COVID-19 vaccine, you are less likely to become severely ill if you catch COVID-19. You are also less likely to spread COVID-19 to other people, but it is still possible for this to happen. Therefore:

  • if you are aged 18 years 6 months or over and you are not fully vaccinated (see note), and you live in the same household as someone with COVID-19, you are legally required to stay at home and self-isolate
  • if you are fully vaccinated or aged under 18 years and 6 months, and you live in the same household as someone with COVID-19, you are not legally required to self-isolate. However, you are strongly advised to take an LFD test every day for 7 days, and to self-isolate if any of these test results is positive

(Note :You are fully vaccinated 14 days after having received 2 doses of an approved vaccine (such as Pfizer/BioNTech, AstraZeneca or Moderna/Spikevax) or one dose of the single-dose Janssen vaccine).

https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance/stay-at-home-guidance-for-households-with-possible-coronavirus-covid-19-infection

For further help, support or advice regarding your HR and people development, call us on 01452 331331 or drop us an e-mail to This email address is being protected from spambots. You need JavaScript enabled to view it.

 

Read 353 times Last modified on Friday, 14 January 2022 09:50

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