17 Jul 2020

As the country moves gradually out of lockdown, the focus is shifting to the NHS’s Test and Trace system to control the spread of the virus by enabling targeted local action instead of national lockdown.

Employers have a crucial role to play in the implementation of this national strategy as they are responsible for the management of a large proportion of the population at work and are in a position to issue reasonable instructions to employees to both protect their own workforce and help implement the national strategy to control the virus.

This issue has come to the fore for employers of office workers with Boris Johnson’s announcement today that the advice to work from home will be cautiously relaxed from 1 August. It was suggested that employers will be given a wide level of discretion in deciding whether to ask staff to come into the workplace, subject to the office being Covid-secure. The revised government guidance, coupled with the announcement that anyone can use public transport, is likely to result in increasing numbers of staff returning to work.

Also in the news was the Government’s change of approach to ensure that outbreaks are contained by more surgical lockdown interventions, which will require increased cooperation between local authorities, the NHS and (quite probably) individual employers. At the start of the week it emerged that a farm in Herefordshire was the site of a large outbreak which required hundreds of staff to isolate on site. In light of stories such as this, it seems as though a greater onus will be placed on individual employers to assist the Government with its efforts to contain the virus.

In addition, the successful implementation of the NHS Test and Trace system will be vital for keeping everyone safely back at work in their offices and in avoiding a wholesale retreat to home working.

The rationale for the system, for which around 25,000 people have been recruited to assist, is to ensure that anyone who has symptoms of Covid-19 can promptly be tested in order to establish whether he or she has the virus, and (if so) to trace their recent close contacts so they too can be asked to self-isolate at home, thereby reducing the transmission of the virus. Compliance is voluntary and can be regarded as a “civic” duty, but employers can make it mandatory so far as their own employees are concerned in a workplace context by issuing reasonable instructions to comply with the system.

  1. What is the NHS’s Test and Trace procedure?
  2. What should you do if an NHS contact tracer informs you that you have been in contact with a person who has coronavirus?
  3. What is the role of a responsible employer?
  4. What does this mean for employers in practice?
  5. What are the key elements of a Covid-19 protocol?
  6. What is “self-isolation” and can the employer require this?
  7. What is the position in relation to sick pay?
  8. What can be done about reluctant employees?

 1. What is the NHS’s Test and Trace procedure?

Full details of the procedure are to be found here.

2. What should you do if an NHS contact tracer informs you that you have been in contact with a person who has coronavirus?

  • You should stay at home (self-isolate) for the next 14 days, as it can take up to 14 days for symptoms to appear.
  • If you get symptoms of coronavirus (a high temperature, a new, continuous cough or a loss or change to your sense of smell or taste) you must get a test to check if you have coronavirus as soon as possible.
  • If you test negative, you should continue to self-isolate for 14 days from when you were last in contact with the person who has coronavirus, as you could still develop symptoms after being tested.
  • If you test positive, you should self-isolate for at least seven days from when your symptoms started (even if this means you end up self-isolating for longer than 14 days).
  • If you do not get symptoms of coronavirus, you can stop self-isolating after 14 days and you do not need to have had a test.

The NHS Test and Trace service contacts people by text messages from NHS tracing or by calls from 0300 0135000 and recipients will be asked to sign in to the NHS Test and Trace contact tracing website here.

The much vaunted NHS Tracing App is not yet ready for use having failed its trial on the Isle of Wight, necessitating recourse to a new system which is now under development.  Contacts are therefore traced by the old fashioned method of asking the person with coronavirus who they have been in contact with while they were potentially infectious.

Tests can be ordered through the NHS website. There are now a number of ways to be tested, such as drive-through regional testing sites, mobile testing units and test kits delivered to your home. The NHS aims to provide the results to the test, which will also include advice on what to do next, within 48 hours.  Tests are also available from private providers.

3. So, what is the role of a responsible employer?

We view this as two-fold:

4. What does this mean for employers in practice? 

If an employee has tested positive for Covid-19, or receives an alert from the NHS Test and Trace team telling them of recent exposure to someone with symptoms, immediate action will be required. We therefore recommend that employers prepare a Covid-19 protocol setting out in advance how incidences of coronavirus will be dealt with in the workplace so that no one is in any doubt as to what is expected of them.  In many respects this will be akin to a business continuity plan and it may be that some elements from that plan can be incorporated into the Covid-19 protocol.

5. What are the key elements of a Covid-19 protocol?

Every employer will need to develop a plan appropriate for their workplace and workforce, but we suggest that it deals with the following:

  • who is responsible for overseeing the implementation of the protocol when the need arises, and who is to deputise if the person with primary responsibility is not available?
  • key information about the virus and a link to the NHS site containing information about the disease and what to do if you think you have symptoms. https://www.nhs.uk/conditions/coronavirus-covid-19/symptoms/
  • the procedure when a staff member presents in the workplace with coronavirus symptoms to include a requirement for that employee to go home and arrange a test as soon as possible and to inform the employer of the result.
  • a requirement on other employees to alert HR if they notice that an employee has symptoms and is not taking any action to address them.
  • the procedure when an employee who was due to attend the workplace informs the employer that they have symptoms to include a requirement that they arrange a test as soon as possible.
  • the procedure to be followed if the employer receives notification from NHS Test and Trace that an employee who has been in the workplace has tested positive.
  • a requirement that an employee who has tested positive remain at home for at least seven days or as medically advised.
  • a requirement that an employee with symptoms who has not yet tested positive to remain at home for at least 14 days.
  • details of how the employer will support an employee who has tested positive or who has symptoms; for example arrangements for a private test; and support and advice on obtaining medical assistance, self-isolation and for dealing with other members of their household.
  • the steps the employer will take to trace all other employees that have been “in contact” with that employee if the test result is positive. There is no obvious definition of the meaning of “in contact” with someone on the NHS Test and Trace website.  We have received medical advice to the effect that in a workplace setting this should be taken to mean having face-to-face contact with someone (less than one metre away) and/or spending more than 15 minutes within two metres of someone. The employee who has tested positive must inform the employer of all of the other employees they have been “in contact” with to the best of their recollection within the 48 hours before their symptoms started.
  • how relevant members of staff are to be informed that an employee has tested positive for the virus, and which sub-groups are to be covered (e.g. those working in the same team or department who may have been “in contact” with the employee who has tested positive).
  • a requirement for all members of staff who have been “in contact” with a member of staff who has tested positive to remain at home for at least 14 days and if they develop symptoms to take a test and to inform the employer of the result.  There is no point in requiring an employee who does not have symptoms to take a test as the current scientific evidence indicates that the test would not be able to detect the presence of the virus.
  • the procedure for ensuring that the areas of the workplace that the infected employee has occupied or visited are cleaned and disinfected paying attention to objects and surfaces which the employee may have touched.
  • a statement that all employees are required to comply with the protocol.
  • a statement that the employer will notify NHS Test and Trace and the health and safety executive if an employee tests positive for coronavirus.

6. What is “self-isolation” and can the employer require this?

The government has advised that individuals must self-isolate for 14 days after contact with any person who has tested positive. This is crucial to avoid these persons from unknowingly spreading the virus, as they may not be showing any symptoms.

Self-isolation involves staying at home and not going outside at any time. If anyone who is asked to self-isolate lives with other people, they do not themselves need to self-isolate, but should avoid contact with the isolating person as far as possible.

The employer is entitled to instruct the employee to keep away from the workplace but is not generally in a position to stipulate how an employee conducts themselves wholly outside of the course of their employment. The employer can however strongly encourage employees to self-isolate where needed and support them to do so.

An employee who fails to self-isolate and as a result infects others may cause reputational damage to the employer which is something that might be covered in the employer’s pre-existing disciplinary policies.

7. What is the position in relation to sick pay?

An employee who is ill with coronavirus is entitled to Statutory Sick Pay (SSP) of about £95 per week and sick pay from the employer in accordance with their employment contract and the employer’s sickness policies.

Those in self-isolation are entitled to Statutory Sick Pay (SSP) if they are unable to work, but are probably not entitled to employer’s sick pay, as they are not ill. This is a key area where an employer can support Test and Trace as they can choose to pay sick pay (if affordable) on the condition that the employee self isolates properly.

8. What can be done about reluctant employees?

What can an employer do if an employee is reluctant to participate in contact tracing or take a test on the basis that this is overly invasive and an invasion of privacy?  If persuasion and reasoned argument fails, the employer may, as a last resort, be able to take disciplinary action for failure to comply with the lawful and reasonable instructions set out in the Covid-19 Protocol and any instructions given to the employee individually. Employers should ensure they understand the reluctant employee’s stated reason before any action is taken.

As we have discussed previously, employers should nevertheless be wary of adopting an overly legalistic approach, particularly given that the practicalities will be in their favour: if the business would need to close or send staff home unless testing is undertaken, peer pressure may be effective to bring a reluctant employee into line.

Contact us

The authors of this article are happy to respond to queries from current or prospective clients of the firm. If you do not wish to instruct the firm, we hope you find this article and others we have written useful and you may wish to refer to the ACAS website https://www.acas.org.uk/. If you wish to instruct us, or to discuss instructing us, please contact one of our employment partners directly or by using the contact form here and we will be pleased to discuss how we can assist you. If you are a journalist seeking further information, please contact us via marketing@foxwilliams.com or by phoning 020 7614 2648.

Articles and commentary by our legal experts on the impact of Covid-19 are all available here.


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