Warren Moores, associate, takes a look at whether the requirement to self-isolate when notified by the NHS Covid-19 app is a legal requirement or just guidance, and the impact on employer/employee relationships.
What is the NHS Covid-19 app?
The NHS Covid-19 app is promoted by the Government and Public Health England to reduce transmission of Covid-19. Most hospitality and leisure venues including cafes, restaurants and gyms require you to scan in on entry using the app.
The relaxation of restrictions has caused a huge uprise in numbers of people getting ‘pinged’ to self-isolate. This is causing problems for numerous employers, leading to temporary closures especially across hospitality settings because of a lack of available staff.
This rise has prompted questions about whether the requirement to self-isolate when notified by the app alone is a legal requirement. Politicians and journalists over the past week have mentioned that the ‘app is just guidance’ but there has been no reference to where this is stated in law. The app itself makes a pretty clear requirement when you are pinged that ‘you must self-isolate’.
Is self-isolation a legal requirement when notified by the app?
The answer is no. The law can be found at Regulation 2 of The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulation 2020 which specifically outlines the circumstances of when someone must self-isolate. The regulation makes clear ‘other than by means of the NHS Covid-19 smartphone app’ i.e. it explicitly excludes the app from the legislation.
This essentially means an employee is committing no criminal offence by not isolating if only alerted to do so by the app. The same principle applies to employers in that they are not committing a criminal offence by allowing an employee to attend work who has only been pinged by the app and not an official Track and Trace call, email or text. So the requirement is guidance rather than law.
What if an employer wants an employee to come to work and they are happy to do so?
We would advise employers against allowing any employee to attend a place of work which would be in breach of their self-isolation requirements.
Although the employee is not committing a criminal offence by not self-isolating, and employer is not committing a criminal offence by allowing it, an employer could be failing in their duty of care to staff by allowing that employee to come to work. For example, if an employee is required to self-isolate but their employer allows them to attend work and a clinically vulnerable employee contracts the virus.
Employers should follow the legal guidance given by the Government and advise the employee to self-isolate at home and not attend work. If the employee can reasonably work from home that is an option. If the employee cannot work from home then they are entitled at least to Statutory Sick Pay (SSP) if eligible.
If an employer was minded to allow an asymptomatic employee into work because they cannot work from home and there is some business critical reason for their attendance then the employer should consider taking additional precautions, like evidencing of daily testing, symptom checking, temperature checks and enhanced social distancing.
What happens if the employee is unhappy about SSP because they are willing to work?
Some employees may be particularly unhappy about being unable to work not least because of a reduction in pay if they cannot attend their place of work. This could lead to an employee saying since it is only guidance, he/she is happy to attend work and available to do so, therefore if you are not going to allow a return then full pay should be given whilst you require self-isolation.
Although this is untested in law it is clear from The Statutory Sick Pay (General) Regulations 1982 (as amended by various Coronavirus Regulations) that an employee would qualify for SSP if eligible when isolating due to the app. There is a clear public policy aim of getting individuals to download the app and the Government is actively promoting employers to advise their employees to do so. It would be entirely against public policy to force employers to pay full pay because an employee was willing to go against Government guidance in a pandemic and the employer did not wish to do so. Therefore, it would be difficult for an employee to argue they should be paid full pay in such circumstances unless full pay is a contractual entitlement above SSP.
Will the situation change?
The Government is currently reviewing the app so we believe the app guidance could change. It is clear the Government have now started to ‘promote’ slightly the fact the app is ‘advisory’ as restrictions are released and become more optional. This is something the Government was perhaps less open about previous due to the fact it clearly wanted people to self-isolate who were pinged. However, in reality it shouldn’t make much difference that the app is only advisory and employers should continue with whatever practices they deem reasonable and in-line with current guidance.