The catchily-titled Health Protection (Coronavirus, Restrictions) (Self Isolation) (England) Regulations 2020 came into force on 28 September, and contain important provisions relevant to employees and employers.
Overall, the regulations oblige self-isolation for both (i) those notified of a positive test, and (ii) those told they have been in “close contact” with someone infected. Although instructions delivered by the NHS App remain as guidance only, directions from the NHS (incl. Track and Trace) or a Local Authority must be complied with.
The duration depends on factors including the basis for self-isolation, when the notification was given, whether there have been any symptoms, and whether there has been a test. Should the notification be withdrawn the obligation comes to an end. During self-isolation, individuals may only leave their home for a limited number of reasons, not including to attend work.
Importantly for employers, a new offence is created by Regulation 7. This covers “knowingly” allowing an employee (or worker) to attend anywhere for the purpose of work except the place they are self-isolating (under these regulations, or as a result of international travel). It kicks-in once the employer becomes aware of the need to isolate.
In practice, it seems employers must specifically instruct employees not to attend work (or anywhere else) and must either insist they work from home or provide leave. It is very unlikely that employers can simply “sit on their hands” once notified and hope employees feel obliged to attend work, as this would almost certainly amount to “allowing”.
It is also important to note that there is no right to challenge a notification to self-isolate under the regulations. This means that once notified, an employee’s negative test or challenge to what is / isn’t “close contact” will not necessarily release them to return to work.
The fines for breach by employers are steep. Although there is a defence of “reasonable excuse” this is likely to be very strictly interpreted. Fixed penalties start at £1,000 rising to £10,000 for a fourth offence. This tally may relate to different employees and so could rack up fast. Prosecution by the CPS or Local Authority is also an option with the potential for an unlimited fine, and will probably be used for serious or repeat offenders.
There are also provisions for directors and other company officers to be individually liable where they have endorsed breaches of the regulations.
The obligations on employees under Regulation 8 are similarly strict, but attract a far smaller penalty for breach.
Once an employee is aware they have to self-isolate, they must tell their employer (including the start / end dates) “as soon as reasonably practicable” and in any event before they are next meant to start work. The latter could cause issues where there are no means of sending a message out of hours, and employers would be well-advised to think about putting a simple system in place to accept employee notifications.
An employee’s failure to notify without reasonable excuse to notify is (for reasons not particularly clear) also an offence under the regulations. It attracts a fixed penalty of £50, but in practice appears very unlikely to be enforced. Where an employee has been unable to contact their employer out of hours, action seems very unlikely indeed.
The regulations also apply to agency workers, with an employee’s notification to either the agency, principal or employer being acceptable. Each must then inform the others as soon as reasonably practicable, and the obligations not to knowingly allow a breach of isolation apply equally to all three.
Mike Blitz practises in chambers’ specialist employment team and is happy to assist with queries arising from this article.