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By Spencers Solicitors

  Lynn Collins    
  January 17, 2022

Changes to sick pay for non-vaccinated employees

Next has become the latest in a list of top UK high street names to announce a cut in sick for unvaccinated staff who have to self-isolate after coming into contact with the virus. They have followed in the footsteps of other UK retailers such as Morrisons and IKEA to make the change to sick pay policy meaning that those who do not receive sick pay for their employer could be reliant upon Statutory Sick Pay - which can be as little as £96.35 per week.

They have stated, however, that staff who test positive for the virus, will be paid full pay, even if they are not vaccinated, and they have also made an exception for those that have not been able to get vaccinated due to mitigating circumstances such as pregnancy or based on other medical grounds.

Changes to rules around the isolation period for those who are vaccinated and have come into contact with the virus coming into force on Monday will cut the days of the isolation period to five. But this latest move by these companies has raised a stir, with anti-vaxxers claiming that they are trying to force those who are not vaccinated to get the jab, by penalising them, which goes against their human rights.

The vaccine is certainly a topic that is dividing the nation, but where do you stand as an employer? Do you even know who has or hasn’t had the vaccine?

An employer that intends to ask employees if they have been vaccinated against coronavirus (COVID-19) must be clear about its reasons for doing so. To comply with its data protection obligations, it must ensure that it has a legal basis for processing such information and that it complies with the conditions for processing special category data (relating to employees' health) under the UK GDPR.

The Information Commissioner's Office has published guidance for organisations on when collecting vaccination data can be justified. Depending on its reasons for asking about vaccination status, an employer may be able to rely on its legitimate interests and compliance with employment rights and obligations as the basis for processing such data.

It is likely to be easier to justify collecting such information in certain workplaces, for example in a health or care setting where coronavirus presents a specific risk. To avoid any discrimination towards people who have not had the vaccine and could be classed as a protected characteristic under the Employment Act (2010) and is likely to raise a number of employment and data protection issues if not handled correctly.

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