UK employers could issue a surcharge for unvaccinated employees enrolled into their health or protection benefits scheme but run the risk of discrimination claims being brought against them, a lawyer has warned.
Last week, Health & Protection reported on Delta Air’s announcement that unvaccinated employees enrolled into the US-based airline’s healthcare plan will be subject to a $200 monthly surcharge from November.
Commenting on whether UK employers could follow this lead, Melanie Stancliffe, partner at law firm Cripps Pemberton Greenish, told Health & Protection that in theory a UK business could adopt a similar approach.
“The position in law is if the employer is offering a benefit, have they allowed themselves the right in the contract to change the cost of that benefit to the employee?” she said.
“In most cases the contract will say you will be eligible to participate in the private medical insurance plan and the terms and conditions of the plan apply.
“So it will depend on what arrangement has been agreed with that employee but in theory, yes, they could perfectly well could [introduce a surcharge].”
However Stancliffe added this would need to avoid discrimination and take account of the reasons for not being vaccinated.
“The implications of that approach is you are treating all employees who have refused or failed to get a Covid vaccination in the same way,” she continued.
“This means as an employer you are open to the allegation that you have discriminated against somebody. This is because there are some groups – those who are pregnant, have specific disabilities, those who are vegan and object to the use of animal product – those are all protected groups.
“They can’t be treated less favourably for all of those reasons. One can do it but there are risks,” she added.
