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As part of the ongoing measures easing the current lockdown restrictions, the Government has introduced a new Test and Trace System (“the System”). Those who have been in close contact with someone who has tested positive for Covid-19 could now be notified by the NHS that they should self-isolate for 14 days even if they don’t have symptoms themselves. Whilst this is currently voluntary it may well become mandatory if the Government conclude that people are choosing not to comply.

The System looks set to become an integral part of the nation’s recovery strategy. A prudent employer should therefore start to consider the implications on their business if any of their employees are required to abide by this “civic duty” (as Matt Hancock refers to it as) to self-isolate.  Given the nature of the System, it could well be that a large number of employees could be requested to self-isolate at the same time (i.e. if the infected person was in a social network with a number of colleagues). 

What pay will an employee be entitled to if they have to self-isolate?

If an employee is able to work from home, they can do so whilst self-isolating. If they are unable to perform their usual duties, an employer should look to find alternative work which can be completed from home. In this situation, the employee would be entitled to receive pay in full as normal.

Where an employee can’t work from home, Statutory Sick Pay (“SSP”) has now been extended to include those who have been asked to self-isolate for 14 days under the System (even if they are not in fact sick or displaying any symptoms). Employees notified to self-isolate under the System are deemed to be “incapable of work” for SSP purposes. An employer will need to decide whether they will want to top up SSP, and pay enhanced or even full pay, in order to ensure their employees comply with the advice to self-isolate and do not risk infecting others in the workplace. As an alternative, in order to encourage compliance, an employer may also give their employee the option to use their paid holiday in order to receive full pay as opposed to SSP.

Can an employer insist that an employee gets tested quickly?

If an employee has been told by the NHS that they have been in contact with someone who has Covid-19, they must stay at home and self-isolate for 14 days. It is only if they start showing symptoms during that time that they are then able to get a test (currently at least – that may change). However, the demand for tests is high, and even if they are successful in requesting a test, the NHS cannot guarantee that they will get one. Therefore, whilst it might be a reasonable management instruction to insist that an employee gets tested quickly (if they are displaying symptoms), the reality of the situation is that this will be difficult for an employer to insist on a test and, in most cases, it is likely that the isolating employee will not be displaying symptoms in any event. 

Can an employer tell an employee to ignore their “civic duty”?

In theory yes, although in reality this would not be good business or legal practice. An employer should be aware that encouraging an employee to ignore Government guidelines on self-isolation could not only create negative PR for their business and/or damage morale amongst the workforce but it could expose the employer to risks of claims under Health and Safety legislation or even claims of constructive dismissal. It is also likely to breach the principles of the “COVID-19 Secure” status that the business should have in place. 

Our advice is that an employer remains flexible in these circumstances through ensuring workplaces are as safe as possible, encouraging staff to act on any notifications to self-isolate and supporting staff whilst in self-isolation. Although the introduction of the System may on the surface seem disruptive for business, it is ultimately less disruptive than a large outbreak of COVID-19 in the workplace which, in extreme cases, may result in a control team from either the local authority or Public Health England being assigned to help an employer manage the outbreak.

Here at Leathes Prior, we like to think that the Employment Team have been at the cutting-edge of this crisis, providing our clients with real-time, pragmatic and modern advice. If you have any questions on the contents of this article, or require specific advice, please contact our Employment Team via email or call us on 01603 610911.

For further insight and advice, check out the Coronavirus Hub here.