You’d better not shout, you’d better not cry, you’d better get jabbed, I’m telling you why…IKEA’s coming for your sick pay

What Has Happened?

If you work for IKEA and are unvaccinated against the Corona virus its announcement does not make for happy reading. On 10th of January 2022 major Swedish retailer IKEA announced its intention to change its written company policy on occupational sick pay. It intends to remove full sick pay provision from staff who have not received COVID-19 vaccinations.

What Does It Mean?

This appears to be a continuation pattern of a recent trend among the retail sector because of coronavirus-related work absences which have started biting. When somebody working in affected companies fails to get vaccinated without mitigating circumstances and they then come into contact with another positive-testing person plans are afoot for this full sick pay provision to be reduced to statutory sick pay.

By way of balance and to show that its executives do not have hearts of stone IKEA clarified that they consider every instance ”on a case-by-case-basis” because every case is unique. They added that full sick pay would still be paid to staff members testing positive.

What Impact May It Have On The Legal Profession?

IKEA’s decision to change its sick pay policy is likely to mean an avalanche of inquiries from employers wishing to change the policies and workforce employment contracts. Staff members affected will also be approaching lawyers for advice because they will presumably not want their employment contracts unilaterally changed.

More Employers may try to reduce staff sick pay. However, employers may opportunistically use this situation to unilaterally change other aspects of staff employment contracts. Such unilateral variations are risky from a legal perspective. Employers cannot simply impose arbitrary unilateral contract variations without express agreement from affected staff members. Employees have various legal options available if an employer attempts this.

Employees can accept the change or If they do not feel comfortable, they can refuse to accept the change and possibly submit a grievance. If they are still not content with the enormous pressure exerted they can agree to work on under the new conditions. However, the affected staff members need to communicate that they are “Agreeing to work under the new terms and conditions under protest”. If they follow the strategy it will re-balance the relationship.

However, staff members should exercise caution if attempting to claim Constructive Dismissal by resigning. They need to provide evidence that they have communicated their resignation to their employer and clarify specific clauses of their employment contract has been breached. If they fail to do this it reduces the reasonable prospects of success as statistically only 2 per cent of cases succeed in the Employment Tribunal.

Employers also need to consider other legal pitfalls of applying such a policy as affected staff members may submit discrimination claims. Jules Quinn from King and Spalding alerted such employers to the “risks” associated with this strategy. Staff members who have not received the vaccine may be disadvantaged if possessing a protected characteristic. Staff may oppose the vaccine on the grounds of philosophical belief, race, disability, pregnancy or religion. Employers must clearly demonstrate with evidence that this policy is a proportionate means to achieve the legitimate aim of protecting public health. Jules Quinn from Spalding and King pointed out that merely changing the workforce employment contracts and company policies vaguely aiming to ”save costs” would not constitute a legitimate aim.

This case is equally important for health and safety lawyers. If this is a legitimate aim employers need to be advised that some staff may stop communicating their relevant vaccine statuses, and risk not taking sickness absence because they fear not being paid. Jules Quinn from King and Spalding Solicitors believes this will ‘undermine’ the legitimate aim.

Is this the thin end of the wedge? Will seemingly unscrupulous employers use this to change policies to further encroach onto staff members lives. Will they attempt to curtail smoking breaks and govern staff lives? These factors affect company sick pay bills and the health service due to the consumption of smoke and alcohol.

Assessing Firms

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This Article was Written Using the Following Sources

[1] Churchill, Francis – Can employers reduce sick pay for unvaccinated staff? – People Management - 11 January 2022 - Can employers reduce sick pay for unvaccinated staff? (peoplemanagement.co.uk)

[2] Dobbin, Clive – Can employers adjust sick pay for unvaccinated workers? – People Management – 5 January 2022 - Can employers adjust sick pay for unvaccinated workers? (peoplemanagement.co.uk)

[3] Churchill, Francis – Covid staffing shortages expected to last into the new year, experts warn – 4 January 2022 - Covid staffing shortages expected to last into the new year, experts warn (peoplemanagement.co.uk)

[4] Powell, Caitlin – Two-thirds of employers back statutory sick pay increase, CIPD report finds – 14 December 2021 Two-thirds of employers back statutory sick pay increase, CIPD report finds (peoplemanagement.co.uk)

[5] Section 19 - Equality Act 2010 – Equality Act 2010 (legislation.gov.uk)

[6] Section 4 - Equality Act 2010 –- Equality Act 2010 - untitled (legislation.gov.uk)

[7] Section 9 -Equality Act 2010 - untitled (legislation.gov.uk)

[8] Section 10 – Equality Act 2010 - untitled (legislation.gov.uk)

[9] Section 11 – Equality Act 2010 - untitled (legislation.gov.uk)

[10] Section 13 – Equality Act 2010 - untitled (legislation.gov.uk)

[11] Section 15 – Equality Act 2010 – untitled (legislation.gov.uk)

[12] Section 18 - Equality Act 2010 - untitled (legislation.gov.uk)

[13] Section 21 – Equality Act 2010 - untitled (legislation.gov.uk)

[13] – Kidd, James – Can employers penalise staff who fail to get vaccinated? – 18 January 2022 – Mills & Reeve - Can employers penalise staff who fail to get vaccinated? - Mills & Reeve (mills-reeve.com)

[14] Quinn, Jules – Jules Quinn comments on employer’s mandatory vaccine policies – 21 February 2021 – Financial Times – King & Spalding - Jules Quinn comments on employer's mandatory COVID-19 vaccine policies - King & Spalding (kslaw.com)