Office notebook. Anxious to secure the return of employees whenever possible, and overwhelmed by the management of repeated absences linked to Covid-19, employers are tempted to establish a two-speed management between vaccinated employees and unvaccinated employees.
The policy of « no jab no job » (“no injection, no work”), which had been implemented in the summer of 2021 in many companies in Australia with the approval of the government, is gaining more and more emulation. In the United States, the American bank Citigroup Inc. has just put its employees on notice to choose between being vaccinated and being made redundant at the end of January.
In the United Kingdom, the subject was controversial in the spring of 2021. Companies wanted to try it, but lawyers recalled the legal framework of non-discrimination. It is however in the United Kingdom that the temptation of a differentiated treatment of unvaccinated employees is making headlines once more, carried in 2022 by the Omicron wave.
At the beginning of January, the companies Wessex Water and Ikea, in fact, reduced to the legal minimum the sickness benefits due to employees with contact cases quarantined because they were not vaccinated. The furniture giant will only pay them 96.35 pounds (115 euros) per week, less than a quarter of their weekly salary, while those vaccinated who are arrested because they are positive for SARS-CoV-2 receive the full contractual compensation.
No discriminatory measure for the employee
Companies have thus decided to cross the red line and pay differently for the vaccinated and the non-vaccinated, in the name of the continuity of the water supply for Wessex Water, and the fight once morest the disruption of the work of its 10,000 employees in the UK for Ikea. This policy only affects non-vaccinated with “a high level of absence”, justified the furnishing group in front of the British press.
Such practices are totally illegal in France. In some cases, differential treatment of employees is possible “provided the objective is legitimate and the requirement proportionate”, indicates the labor code. This is the case, for example, of the measures taken in favor of vulnerable people “aimed at promoting equal treatment”. However, the code is very clear on one point: no employee may be subject to a discriminatory measure “due to his state of health”, indicates article L. 1132-1.
“As a result, the employer’s contribution to the daily allowances paid in the event of sick leave cannot be conditional on vaccination”, explains Aymeric Hamon, associate lawyer at Fidal. The policies of Ikea and the water company Wessex Water should not cross the Channel.
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