| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Cutting Sick Pay for Unvaccinated Staff: Winning Idea or Own Goal?
Now that the government has lifted its advice to work from home, life can start to return to normal for many businesses. However, the price may well be a surge in self-isolation and sickness absence as employees mingle with each other and fellow commuters. The burgeoning cost of Covid-related absences has led some employers, including Ikea, Morrisons, Next, Ocado and Wessex Water, to withdraw enhanced sick pay from unvaccinated staff who are self-isolating but don’t have Covid symptoms. Here, I look at the benefits and risks of adopting this approach for your own workforce.
This policy has come about because people who have had two jabs no longer need to isolate if they have come into contact with someone who has Covid, as long as they comply with testing requirements. Also, isolation has been cut to 5 days for people with the virus, regardless of vaccination status, if they test negative on days 5 and 6.
In contrast, unvaccinated people still need to isolate for 10 days if they are close contacts of a positive case. Unless they can carry out their duties from home, this means they can’t work, which is creating staff shortages and huge disruption for employers.
The companies mentioned above are still paying company sick pay to everyone who actually contracts Covid, even if they aren’t vaccinated. However, they aren’t paying it to employees who have chosen not to have the vaccine and who don’t have symptoms but are required to isolate.
Benefits
There are 3 potential benefits from this type of policy:
- Improved Safety
Withholding sick pay may encourage unvaccinated employees to get jabbed. This would cut the risk of an outbreak of the virus in your workplace.
- Reduced Absence
Once employees are fully vaccinated, they won’t need to isolate (unless they test positive, which will be less likely when they’re jabbed).
- Cost
This fall in absence would save you money. There will also be direct financial savings because you won’t be paying company sick pay to unvaccinated employees, unless they are actually ill.
Risks
There are some important drawbacks to consider before going down this route:
- Reputational Damage
Some sections of the media have branded sick pay cuts as ‘cruel’ and a way of passing the cost of Covid onto employees. However, many people are likely to think unvaccinated people only have themselves to blame if they have to isolate.
- Legal Claims
It’s possible you could face a tribunal claim from an unvaccinated employee if you withhold company sick pay. The most likely claim would be disability discrimination from someone who can’t get a jab for medical reasons. It would therefore be important not to withhold sick pay if there are mitigating circumstances.
You might also face religion or belief claims or human rights claims from anti vaxxers. These may well not succeed but defending them would still be costly.
Data privacy claims are also possible if you ask about vaccination status or employees discover that a colleague isn’t jabbed.
- Employee Relations
Such a policy will annoy and financially disadvantage unvaccinated staff, potentially leading to demotivation and friction with vaccinated colleagues. Also, you may have office-based staff who can work from home on normal pay while isolating and who therefore won’t be caught by your policy. This could create a ‘them and us’ culture, with low-paid ‘shop floor’ staff who have to survive on statutory sick pay while isolating feeling unfairly treated.
On the other hand, vaccinated employees may currently feel their unvaccinated colleagues are getting 10 days’ paid holiday whenever they isolate, while they have to pick up their work. You may feel their concerns outweigh the objections of an unvaccinated minority.
- Administrative Burden
Changing employees’ terms and conditions can be time consuming and contentious. You may need to consult staff and get their consent for the change. However, depending on the wording of your company sick pay scheme, you might be able to argue that only employees who are actually sick are entitled to sick pay, not those who are isolating without symptoms. You would argue that payments you’ve been making so far have been purely discretionary and consent isn’t required to withdraw these.
The Prime Minister has said he plans to end the requirement to self-isolate in the coming weeks – perhaps when the current rules expire on 24 March or earlier. So you could create lots of work for yourself and tension in the workplace for the sake of a few weeks’ savings.
- Cost
Withholding sick pay could result in unvaccinated employees coming into work when they’re supposed to be isolating so they don’t lose money. This could result in an outbreak in your workplace, even if most staff are vaccinated, given how transmissible the Omicron variant is. This could ultimately cost you more in lost productivity and sick pay than if you’d paid those few unjabbed employees to stay away. This could make the policy something of an own goal.
| HEALTH & SAFETY
Michael Ellerby, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
PPE Regulations to be Extended to ‘Workers’
There are some changes to the PPE rules coming through this April. The Personal Protective Equipment at Work Regulations have been with us since 1992, and superficially, the new amendments appear subtle, the main change being the word ‘employees’ changing to ‘workers’. However, the changes will affect you if you engage such workers, so you 1) need to understand the employment status of those working for you, and 2) if you do engage workers, then you must provide PPE to those individuals in the same way as you do your employees.
The Personal Protective Equipment at Work Regulations 1992 place a clear and simple duty on employers to ensure that suitable PPE is provided to employees who may be exposed to a risk to their health or safety while at work.
The complication under the Personal Protective Equipment at Work (Amendment) Regulations 2022 is that these regulations extend this duty (from 6 April 2022) to ‘Limb (b) workers’. If you think you may employ such workers, you need to understand whether the change in law applies to you.
So, what are Limb (b) Workers?
We need to refer to Section 230(3) of the Employment Rights Act 1996, where the definition of a worker has two ‘limbs’:
- Limb (a) describes those with a contract of employment. This group are employees under the Health and Safety at Work Act 1974 and are already in scope of the PPE regs (so no change there).
- Limb (b) describes workers who generally have a more casual employment relationship and work under a contract for service – they do not currently come under the scope of PPE regs.
The new regulations will therefore now apply to both employees and limb (b) workers.
What this Change Means for You
- If you engage with staff as ‘employees’, then there are no changes.
- If you have ‘employees’ and ‘workers’ (limb (b) workers), then from 6 April 2022, you need to ensure that there is no difference in the way PPE is provided to your workers. This means assessing the risk and ensuring that suitable PPE is provided (as required), to all people that fall under the definition of worker.
- If you only engage with limb (b) workers, then from 6 April 2022 , you need to ensure that your workers are provided with PPE free of charge, where required. This means assessing the residual risk once all other measures have been taken.
General PPE Duties Remain Unchanged
Although the general duties under the PPE regulations are unchanged, they have been extended. Essentially, if your risk assessment indicates that a limb (b) worker requires PPE to carry out their work activities, you must carry out a PPE suitability assessment and provide the PPE free of charge as you do for employees.
You will also be responsible for the maintenance, storage and replacement of any PPE you provide. Your workers will be required to use the PPE properly following your training programme. If the PPE gets lost or becomes defective, your workers should report that to you. Regardless of any new legal responsibilities, the PPE you provide must be compatible, maintained and correctly stored.
You, as the employer, then need to ensure suitable PPE is:
- Provided
- Compatible
- Maintained
- Correctly stored
- Used properly.
You will also need to provide training and instruction in its use to all your workers. And, as ever, you cannot charge workers for PPE required to carry out their work.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Meet the Deadline on Reporting Company Car Changes
The correct functioning of the PAYE system depends on an employee’s tax code being correct and, where benefits in kind are not payrolled, accurately reflecting any taxable benefits that the employee may have. HMRC will amend tax codes in-year to reflect any changes in an employee’s circumstances. However, they can only do that if they have correct and up-to-date information. This, in turn, imposes a number of reporting obligations on the employer.
One of these obligations is the requirement to report company car changes to HMRC. There are different ways to do this depending on whether or not you payroll company car benefits.
Form P46(Car)
This is used where company car benefits are not payrolled. Where this is the case, you must send a P46(Car) to HMRC for any quarter in which you:
- Provided an employee with a company car for the first time.
- Stopped providing an employee with a company car.
- Provided an employee with an additional company car.
The next deadline for submitting a form P46(Car) is 2 February 2022. You will need to send in a P46(Car) by that date if any of the above events occurred in the quarter to 5 January 2022.
Filing Options
If you need to submit a P46(Car) by 2 February 2022, there are various ways in which this can be done. You can complete the form online, print it off and send a paper copy to HMRC, or you can send the form electronically using either HMRC’s PAYE Online service for employers or your own payroll software if this facilitates the submission of the form.
You will need to let HMRC know the employee to whom it was provided and the date it was first made available or the date it was withdrawn, as appropriate. You must also tell HMRC about the make and model of the car, its engine size, the date it was first registered, type of fuel used, the price of the car and any optional accessories.
If the employee made a capital contribution or a contribution for private use, you must also tell HMRC about this. Where the car is made available under an optional remuneration arrangement, such as a salary sacrifice or cash for car arrangement, you must disclose the cash foregone by the employee in exchange for the car. This information is needed for HMRC to calculate the taxable amount, and consequently the adjustment needed to the employee’s tax code.
Replacing a Company Car
You do not need to submit a P46(Car) to inform HMRC that an employee who already has a company car has changed their car – P46(Car) is only used where an employee is given a company car for the first time or is given an additional car.
However, the tax that the employee will pay on their company car is likely to change if they change their company car, so it is useful to notify HMRC of the change. This can be done in-year using PAYE Online for employers or via your payroll software, or after the end of the tax year on the employee’s P11D.
Payrolling
If you payroll company car and fuel benefits, you do not need to submit a P45(Car) to notify HMRC of new company car allocations or that you have ceased to provide a company car. Instead, you should send information about the cars provided to employees to HMRC in the next Full Payment Submission.