• Richard Beschizza

Test and Trace Isolation Alerts - Implications For Employers

Updated: Jul 22, 2021

The government has announced that as of 19th July 2021, many of the remaining social distancing restrictions put in place to contain the spread of COVID-19 will be removed. This will mean a significant increase in people mixing in groups greater then 6, without the use of masks or practising social distancing. There is a strong possibility that we may see an increase in people being notified in one of two ways if the recent data on the infection rate is anything to go by. The government again confirmed on 12th July 2021 that the rules concerning self-isolation will continue.

What should employers do?

If employees are notified as having come into contact with someone who has since contracted COVID-19 either through Test and Trace or a notification on the app, they must self-isolate and this includes the day they were last in contact with that person and the next 10 full days.

During this time, if the employee starts to develop symptoms of COVID-19 they must get a PCR test whilst continuing to self-isolate. If employees test negative, they must still continue to self-isolate for the rest of the 10-day period as the NHS maintains that symptoms can develop after being tested.

Many employers may therefore face an increase in employees being notified. This could have significant effects if the majority of their workforce has to self-isolate. Given the strain this may have on their business, especially if their jobs can’t be carried out through remote working, the employer may feel reluctant to accept, at least at face value, the employee’s word that they have been told to self-isolate. This can cause an attitude of distrust and - by extension - negatively affect the employment relationship.

Asking for proof?

As with any kind of sickness, after a period of self-certification (7 days or less), the employee should try to obtain a fit note. This is not only to prove to their employer that they are sick, but also a mechanism to ensure that they can continue to receive their SSP payments.

If an employee discloses that they have been told to self-isolate after a notification, then it would seem reasonable, given the effect that a 10-day self-isolation period would have on the business, to ask for some form of proof. The employer could encourage this as a method of ensuring they are able to circumvent the 3 qualifying day period that is typically required for normal sickness - an amendment to the legislation for COVID-related sickness allowed employers to begin paying SSP from day one, providing the self-isolating period was for at least 4 days.

Providing proof may be easy if the employee is using the app; a simple screen shot may suffice. But if the notification comes through the Test and Trace system, it may have simply been a phone call, rather than an email or text message from the contact tracer with no written follow up to confirm what is, in effect, a legal instruction.

If, as an employer, you are faced with that situation then you need to balance your options. There is an expectation that you have trust and confidence in your employees, so it may only be when doubt is supported by evidence that a challenge could be considered reasonable. So, how can an employee really prove they have been told to self-isolate if it was simply a phone call? The employer may ask the employee to speak to the contact tracer; however, the service is currently said to be running at levels beyond capacity and may not be able to respond to a request for written confirmation within the 10-day period of self-isolation.

The NHS 111 service offers the ability for employees to request a ‘self-isolation note’ if they have been told to self-isolate because of coronavirus. The website says that the service is only for people who have symptoms, live with someone who has symptoms or are in a support bubble with someone who has symptoms. In addition, the employee must have been told to self-isolate through one of the following means: NHS website, NHS Test and Trace, NHS 111, 111 Online, NHS Inform, NHS 111 Wales, COVID-19 NI app or Public Health Agency.

An employer can then go on to check the isolation note using the same NHS 111 online service by inputting the unique 16-digit reference number and the employee’s date of birth. The employer will have to have trust that the information the employee inputted in order to obtain the note was genuine, given how easy it appears to simply manipulate the system by inputting the right information to produce the isolation note.

It may be worth considering, should the nature of the work and industry allow it, working from home options during the period of self-isolation. Providing that this results from an instruction to self-isolate and the employee has not yet manifested symptoms, the employer may decide to allow them to do this and continue to be paid in full.

If, for whatever reason, it is not and/or at any point they do become symptomatic and are incapacitated due to illness, then you should be mindful that the period of absence would become classified as sickness and paid in line with either standard SSP guidelines and eligibility or any occupational sick pay that may exist. It is also important to be aware that a new scheme was announced by the government to help those on low incomes to self-isolate which runs until 30th September 2021.The scheme offers support to people on low incomes who are unable to work from home if they are told to self-isolate by NHS Test and Trace and will lose income as a result.

It may be the case that an employer is not satisfied with the veracity of the instruction due to the absence of firm evidence. They may find it tempting to encourage their employees to dismiss the instruction if it was received is through the optional and voluntary app - until such time as they are notified through the Test and Trace service. Given the inherent flaws in the app’s technology, this would at least seem to provide compelling justification for doing so.

However, to do so could give rise to a number of significant risks, whatever the method used to request an employee’s self-isolation. Under Section 44 of the Employment Rights Act 1996 (ERA), an employee has the ‘right’ not to be subjected to a detriment by their employer should they take certain steps in connection with health and safety. Most notable in the current climate are Sections 44(1)(d) and 44(1)(e). Under Section 44(1)(d), an employee is protected against detriment when, ‘in circumstances of danger which [they] reasonably believed to be serious and imminent’ they left, proposed to leave or refused to return to their workplace. An employee could possibly engineer this protection to fit the narrative that the employer is encouraging them - or at worst forcing them - to come into work when they have been told to self-isolate.

In the first instance, the implications may be an inadvertent breach of this section. However, possible whistleblowing and breaches of health and safety legislation may be apparent more widely. This may also be coupled with a possible ‘bolstering’ of the narrative of a constructive dismissal not only due to the lack of trust that is displayed by the employer but also active encouragement of a breach of the rules which could in turn result in them being fined up to £10,000.

Invariably, every situation is fact specific but unless there are genuine reasons to doubt the veracity of the instruction, the employer would find it difficult to force an employee to come into the workplace.

Additionally, if evidence is obtained in any form, employers must be mindful of their GDPR obligation if they retain this information and process it. Before you decide to collect such data, you should be clear about what you are trying to achieve and how recording of this information will help you to achieve it. It may be considered private health information and therefore special category data. Your use of this data must be fair, necessary and relevant for a specific purpose. Further guidance on this topic can be found on the ICO website: https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/special-category-data/

Finally, following the announcement on 6th July 2021, many employers may also be tentatively looking to 16th August 2021 as a date which affects self-isolation rules given the effect the policy continues to have on businesses.

A statement to the House of Commons confirmed that ‘fully vaccinated people in England won't have to self-isolate if a close contact tests positive for COVID-19 from 16th August’.

The justification is that the modelling suggests the risks from the virus will be even lower after both jabs, meaning anyone who is a close contact of a positive case will no longer have to self-isolate if they have been fully vaccinated.

Adults who had been in close contact with a positive case would be "advised" to get a PCR test as soon as possible to make sure they hadn't been infected, but this appears, in principle at least, to be simply a recommendation and not necessarily compounded by a legal obligation.