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How should an Employer React to an Employee being ‘Pinged’ by the NHS COVID-19 App?

There appears to be as much confusion now over the self-isolation rules as there was a year or more ago when we first grappled with what we should or  should not be doing during the pandemic.  It is important to note that the obligation to self-isolate is different depending on whether you are contacted by NHS Test and Trace or ‘pinged’ by the NHS COVID-19 App. In this alert, our Partner Emma Bartlett discusses what employers need to consider in deciding how to deal with employees notifying them that they have been ‘pinged’ by the NHS COVID-19 App.

You can also hear Emma talking about this issue this morning on BBC Radio 4’s Today programme – click here and go to 1 hour 55 minutes to listen now.

Is there a difference between notification by NHS Test and Trace and being ‘pinged’?

If notified to self-isolate by NHS Test and Trace, it is a legal requirement to do so for the period notified, which is usually 10 days.  An employer should not be asking employees who are notified to self-isolate by NHS Test and Trace to attend work in breach of their legal obligations.

However, if employees are ‘pinged’ by the NHS COVID-19 App, there is no legal obligation to self-isolate at present; the guidance is that it is advisable for individuals to self-isolate.  The government message yesterday (20 July 2021) was that it is crucial that such individuals self-isolate, but it has not yet taken steps to make it mandatory to do so and, in the circumstances, they can exercise discretion.

What should employers be considering now?

Employers need to consider in advance how they will respond to those who are pinged by the NHS COVID-19 App.  It might be useful to create a policy to deal with this situation, and to keep the policy under review, depending on whether the government will amend the guidance. Where possible, in order to support employees in following the guidance to self-isolate, it is reasonable for employers to permit them to work from home for the self-isolation period.  However, where they cannot work from home, the employer’s next consideration is whether it is reasonable to require them to come into the workplace or, if not, whether they will be paid as normal, or move onto statutory sick pay (SSP).

Employees are obliged to follow their employer’s reasonable directions.  Before an employer requests an employee to come into work when they have been ‘pinged’, the employer should undertake a risk assessment in accordance with its health and safety obligations, to assess whether in doing so there may be a heightened risk of transmission of this infectious virus, and what steps the employer can take to mitigate that risk.  For example, if it is necessary for the employee to come into work, can they be isolated in the workplace from their colleagues or could the employer increase its use of PPE, and ensure that social distancing is maintained during that 10-day period? Can vulnerable employees, in particular, be kept away from the employee?  An employer’s H&S duties extend to consulting its workforce and, at this stage, understanding how colleagues will feel about working alongside someone who has been ‘pinged’ by the NHS COVID-19 App is important.  Those colleagues may have some good suggestions on how to minimise the risk of transmission, since they interact with each other on a day-to-day basis.  It is important to note that H&S obligations extend to an employee’s welfare and, therefore, considering any increase in anxiety levels that could be triggered at such a time is relevant.

What about pay during self-isolation if the employee cannot work?

If it is better for the employee not to attend work but the employee cannot do any work from home, the next question is how to pay the employee.  If they are not sick but are self-isolating, they are entitled to SSP. The Department for Work and Pensions has clarified that whether an employee is self-isolating on the instruction of NHS Test and Trace or because they have been pinged by the COVID-19 app, SSP will be paid, including during the first three days, known as ‘waiting days’, when SSP is not usually payable. If the employee is sick with COVID-19, then the ‘waiting day’ period is also waived.  If they are sick, but not with COVID-19, the ‘waiting days’ still apply.  The employee may, however, be concerned about their sickness absence record and will not want the isolation period to count against them.  The employer will need to determine how they respond. It seems reasonable that if the employee is not sick, despite being eligible for SSP, their sickness absence record is not affected, if they are self-isolating after being ‘pinged’.

If an employee considers that the employer is unreasonably directing them to come into work after they notify the employer that they have been pinged by the COVID-19 App, the employer risks  being in breach of the implied term of trust and confidence.  An employee who feels forced to resign from their employment, or is dismissed because they refuse to come into work after being ‘pinged’, may be eligible to bring a constructive unfair dismissal or unfair dismissal claim.

Importantly, an employer who asks an employee to attend work after being contacted by NHS Test and Trace will be asking an employee to break the law and, if they are regulated, could risk the employee either reporting this to the relevant industry regulator or to the Health & Safety Executive (HSE).

An employer who asks an employee to attend work after they have been ‘pinged’ by the NHS COVID-19 App could still find a disgruntled employee reporting the matter to the regulator or the HSE, but the legal requirement that may be at issue here is not the obligation to self-isolate.  Instead, it will be whether the employer is in breach of, or likely to breach, its H&S obligations either to consult over health safety and welfare and/or to provide a safe working environment. As the employee could potentially also be putting themselves into a whistleblower category, especially if they have voiced these concerns first with the employer, it is even more important for the employer to consider how “reasonable” requiring an employee to attend work in this situation will be.  Without first having consulted the workforce in any way or undertaken a risk assessment, the employer may not be confident that its request is going to be compliant with its health and safety obligations or, indeed, “reasonable”.

If you have any questions concerning employer responses to employees being pinged by the COVID-19 App, or for any other queries regarding COVID-19 issues, please contact our Partner Emma Bartlett, who specialises in employment and partnership issues for multinational employers, senior executives, partnerships and partners.