John Lewis refuses to join rivals in cutting sick pay for unjabbed staff

The retail giant’s Operations Director, Andrew Murphy, confirmed in LinkedIn post that the firm had no plans to follow industry rivals in cutting sick pay based on vaccination status, stating “we don’t believe it’s right” to do so.

The announcement comes after companies such as Ocado, Next, Morrisons and IKEA revealed they are now only paying the legal minimum to staff who have had only one or no jabs, should they have to isolate due to Covid-19 exposure.

In a LinkedIn post, Murphy wrote: ”We’re conscious that some businesses have changed their sick pay policy with regard to unvaccinated employees in some Covid related absence scenarios.
At the John Lewis Partnership we’re not going to make any change of this type.

“We’re hugely supportive of the UK vaccination programme (we give ‘free’ time off to all Partners to get their vaccination and we've provided our Bracknell sports hall to the NHS as a vaccination centre since the very start of the jab roll-out, providing 160,000 jabs). We just don’t believe it’s right to create a link between a Partner’s vaccination status and the pay they receive.”

He went on: “We cast no judgement on the decisions of any other organisation... however, when life increasingly seems to present opportunities to create division - and with hopes rising that the pandemic phase of Covid may be coming to an end - we're confident that this is the right approach for us.”

Murphy also confirmed that John Lewis would also not refuse to hire a job candidate based on their vaccination status.

John Lewis bucks industry trend

John Lewis’ decision appears to be at odds with the moves made by fellow retail heavyweights.

In September 2021, The Guardian reported how supermarket chain Morrisons cut sick pay for unvaccinated workers who need to self-isolate, in a bid to recoup “biblical costs of managing COVID”.

At the time, Chief Executive David Potts said the pay changes were among a number of strategies to off-set cost rises from shortages of HGV drivers, supply chain disruption, and growing wholesale prices.

And this January, it was revealed that IKEA had slashed its sick pay for unvaccinated UK staff who are forced to self-isolate following close contact with someone with Covid-19.

As reported by the Mail on Sunday, unvaccinated workers at the furniture retailer have, since September, only been eligible for statutory sick pay of £96.35 a week during their ten days of isolation. Comparatively, staff on the shop floor can usually expect an average weekly wage packet of more than £400 before tax.

Bosses at the firm, which employs 10,000 staff in the UK, have said they will consider “mitigating circumstances” surrounding the policy, which was introduced back in September, according to the publication.

What the law says

According to solicitors' firm Harper James, such sick pay policies, although most likely legally sound, are “fraught with pitfalls” and firms “will need to jump through some hoops”.

According to the Health Service Journal (HSJ), potential legal risks include:

Indirect discrimination

For example, by saying that no employee will get company sick pay if they are sick with Covid-19 and are not vaccinated, this disadvantages certain employees with protected characteristics.

On its website, HSJ said: “A good example of this is employees with health conditions who have been advised against getting the vaccine. To not pay these employees company sick pay would likely be disability discrimination. There would also be good arguments for discrimination on the grounds of religion/belief, race, maternity and even sex discrimination.”

Potential breach of human rights

Consultation may be needed with unions and/or employee representatives to be able to legally introduce the change to the sick pay policy, according to HSJ, who stated there are also practical issues of implementing this, including obtaining proof of vaccination and the data protection issues that this raises.

"Think carefully", employment expert warns

Fiona Hamor, Employment Partner at Pannone Corporate, previously told HR Grapevine: “There’s no doubt that essential services and businesses in general are under extreme pressure at the moment due to rising staff absences, as case numbers reach record numbers. However, it’s important for companies to think carefully about how they manage the issue, with a more incentive-led approach potentially a better way of encouraging staff to get vaccinated.

"Not paying a discretionary bonus or sick pay to unvaccinated members of staff is relatively risk free from a legal point of view, but imposing unilateral changes to pay and conditions may result in successful claims.

“In other parts of the world, including the US, companies have gone further by imposing monthly fees on employees or even threatening job losses if they don’t receive the coronavirus vaccination. Despite the UK care sector facing mandatory jabs since November, the ‘no jab, no job’ stance is fraught with legal problems in this country, in terms of sparking potential discrimination claims, and businesses need to be mindful of those issues and look at the individual circumstances on a case by case basis before going down this route", Hamor concluded.

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