SSP Self Isolating: What are your rights to sick pay?

Caragh Bailey
17/01/2022
5
3 min read
SSP Self Isolating: What are your sick pay rights when self isolating? From Employment Law Friend

Self isolation and sick pay

Earlier this week Ikea joined a growing list of employers who are refusing to provide employees with any pay beyond Statutory Sick Pay if they are required to self-isolate due to not having had their Covid vaccinations.

Presently, in England, those who have received two vaccines (but not the booster) do not need to self-isolate if they have been in close contact with someone infected with Covid. However, those who are unvaccinated or have only received one vaccine, and are contacted through the government's test-and-trace system must still isolate as a matter of law.

Whilst it is easy for an employer to insist new staff are fully vaccinated, it is difficult for most employers to insist on this for existing employees and workers (the care sector, and soon the NHS are different, because specific laws have been passed regarding these sectors).

However, increasingly employers grappling with underlying labour shortages and with increasing numbers of employees off with Omicron and other winter viruses, are now often insisting that those who are legally required to isolate and have not been vaccinated will only receive SSP self isolating, of £96.35 a week, as opposed to their basic salary.

In practice, this is the closest many will be able to come into pressurising employees to get vaccinated, which, for an existing employee could give rise to an unfair dismissal claim, and could also potentially lead to lots of employees leaving their workplace – as has happened within the care sector. This incentive though will only work for those employers who do pay more than SSP when an employee is off sick, which many do not.

There is no underlying legal right for an employee to be paid their salary rather than SSP self isolating, and whether an employee is entitled to more than SSP from their employer will depend on the written terms of their contract. To the extent that employers are changing terms and conditions of the written contract (which will generally be the case, if those who are vaccinated get financial compensation above SSP), then although in theory an employer needs to get the employee to agree to a change in the contract between them, in reality there is little an employee can do when faced with a unilateral change of this nature.

It is not possible to bring a breach of contract claim in an employment tribunal while an employee is still employed, and if an employee stays in their role they will be deemed to have accepted the change imposed.

It is important that any such policy – as Ikea’s does – makes an exemption for anyone who cannot be vaccinated. Although mainly introduced because of labour shortages and to encourage staff to get vaccinated, it is possible policies such as this will make the unvaccinated more reluctant to take a test for any Covid symptoms, because they would then only be entitled to SSP if they tested positive.

Any employee who attended work having either tested positive or having been told by test and trace to self-isolate would, if caught, be liable for dismissal, because they had broken the law and put colleagues and others in danger.

It is very likely that changes of this nature will become ever more common, and they will probably be welcomed by many employees who have themselves been vaccinated.

Do you have a reason that you cannot be vaccinated?
If your employer's policy does not make an exemption for you, you may have grounds to make a discrimination claim. Book an initial assessment to see if you have a claim and what you should do next.

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