An employer's guide to dealing with the 'pingdemic'

With many employers now finding themselves facing a situation where staff are having to self-isolate, it’s important for them to fully understand their obligations and how best to handle the ongoing ‘pingdemic’.

If an employee is contacted by NHS Test and Trace and is told to self-isolate, they are legally obliged to do so for the period notified. Individuals who fail to self-isolate once contacted by NHS Test and Trace could be liable for a fine, which start at £1,000.

However, there is a difference if employees are “pinged” by the NHS app. Despite initial confusion, the Government’s message is now clear: it is crucial that those who are “pinged” by the NHS self-isolate, although this is currently not legally enforced.

Employers will first need to consider whether the member of staff is able to work from home during any period of self-isolation.

If an employee is contacted by NHS Test and Trace and they are not able to work from home, their employer should not then, under any circumstances, ask the employee to come into work. To do so would be asking the employee to breach their legal obligations and would also constitute a criminal offence which could find the employer facing prosecution. An employee might treat any such request as a breach of the implied contractual term of mutual trust and confidence, resign in response and look to bring a claim for constructive unfair dismissal. Alternatively, if an employer were to take action against an employee who refused to come into work in this situation, the employee might then have a claim under section 44 or section 100 Employment Rights Act 1996 as it could be argued that it was necessary to remain away from the workplace to protect their health/the health of their colleagues and in doing so they were subsequently subjected to a detriment (or in extreme cases, dismissal).

If an employee is notified via the NHS COVID app that they need to self-isolate and they cannot work from home, employers should undertake a rigorous risk assessment before allowing the employee to return to the workplace. They will need to ensure that they take appropriate steps to protect the health and safety of their workforce more generally.

In the event that employees cannot work from home and either shouldn’t or can’t come back into the workplace, employers will need to think about how the employee will be paid. If they are isolating but aren’t sick then whilst they’re entitled to SSP, the first three days will count as waiting days. If they are ill with COVID-19 then the waiting days are waived and they’re entitled to SSP from day one. Alternatively, an employee may wish to take the period as annual leave or unpaid leave to avoid having the period of isolation on their absence record. Employers will need to handle any requests in a reasonable and consistent manner.

However, the government have now announced that this process is only intended to run until 16 August 2021 when those individuals told to self-isolate who are fully vaccinated will, in fact, be exempt from self-isolation. This will only apply to employers who have received a letter from the government naming the individual worker as exempt.

The test that will be applied when identifying whether an individual should be exempt from self-isolation is whether they work in critical elements of national infrastructure and whether their absence would likely lead to the loss or compromise of this infrastructure.

It is expected that this process will be the exception rather than the rule and will, for obvious reasons, not apply to those individuals who have tested positive for COVID-19.

Employers will need to contact the relevant government department to request exemption for individual employees, setting out the number of people they propose would leave self-isolation, their roles, the impact self-isolation would have and when that impact would materialise. Further details of this new exemption scheme can be found here: https://www.gov.uk/guidance/nhs-test-and-trace-workplace-guidance#guidance-for-employers

Elsewhere, employers are likely to find it useful to have a clear policy in place which takes into account the above. Any such policy should be clearly communicated to staff, this will ensure that they know precisely what to do if they are notified by the NHS that they need to isolate and avoid any confusion around their entitlements whilst isolating.