UK Covid-19 developments: criminal offences for knowingly permitting breach of self-isolation rules; changes to return to work guidance

Self-isolation rules and return to work guidance have been continually updated over the last few weeks.  In particular, employers could now be liable for criminal offences for knowingly allowing workers who should be self-isolating to come into the workplace, and employers are once again being told that office workers should work from home over the winter if they can do so effectively. These developments are discussed in more detail below.

Self-isolation and sick pay

On 30 July 2020 the minimum isolation period for people with symptoms of COVID-19 or who have received a positive test result was increased from 7 days to 10 days.  Household members continue to have to isolate for 14 days and for a further 10 days from developing symptoms/testing positive themselves.  The full guidance is set out here.  Amendments to the SSP regulations with effect from 5 August ensure that an individual is entitled to SSP for the full period of isolation in accordance with this new guidance, and on 26 August SSP entitlement was extended to employees advised to self-isolate for 14 days before an operation.

There have been several changes to the list of countries with a travel corridor (permitting those returning from the country not to quarantine for 14 days) over the last few months.  SSP is not available for self-isolation for this reason and employers may therefore face requests to work from home, or for further holiday, unpaid leave or furlough (if eligible).  Employers should communicate a clear policy on how they will treat employees required to quarantine following international travel, including any differences depending on the reason for travel and whether or not the quarantine requirement applied before booking/travelling.  Guidance for employers and employers on post travel quarantine was published on 14 August; this states that dismissal should be treated as a last resort and employers should consider alternative arrangements first, such as agreeing with employees to take annual leave or unpaid leave if quarantined employees cannot work from home.

New criminal offences for self-isolation failures - both individuals and employers can now be fined

On 28 September new regulations came into force in England requiring anyone who has tested positive for COVID-19, or has been officially notified by NHS Test and Trace that they have been in contact with someone who has tested positive (note this does not include notification through the NHS COVID-19 smartphone app), to self-isolate for 10 or 14 days respectively.

Once an individual is aware that they are required to self-isolate under the above paragraph or due to international travel quarantine requirements, they must notify their employer (or the employment business or client in the case of an agency worker) of the required isolation period as soon as reasonably practicable and before they are next due to work. The entity that receives the notification from an agency worker must inform others in the agency chain as soon as reasonably practicable. An employer who is aware of a worker's or agency worker's requirement to self-isolate (whether by being notified or otherwise) must not allow them to come into work.

Individuals and employers who breach these requirements without reasonable excuse will commit a criminal offence and could be fined between £1,000 and £10,000.  Where the employer is a body corporate, any director or other officer will personally commit an offence if the employer's offence was committed with the consent or connivance of that officer or attributable to any neglect by that officer. See here for further details.

Employers should ensure their staff are aware of the self-isolation obligations, including to notify the employer, and that line managers are fully briefed to ensure notifying individuals do not come in to work.

Covid-secure workplaces: updates to guidance and reinstatement of "work from home if possible" advice

The Government's guidance notes for specific types of workplace were updated on 9 September;  the original overarching "5 steps to working safely" have been removed and instead the individual guides set out seven priority actions:

• complete a COVID-19 risk assessment
• clean more often
• ask your customers to wear face coverings
• make sure everyone is social distancing
• increase ventilation
• take part in NHS Test and Trace
• turn people with coronavirus symptoms away.

These are followed by additional priority actions for each specific type of workplace. The guidance was also was amended to note that the "rule of six" (restricting social gatherings to six people) in force from 14 September does not apply to workplaces, and to set out that employers should keep a temporary record of their staff shift patterns for 21 days and assist NHS Test and Trace with requests for that data if needed.  New guidance for employers on testing and contact tracing (here) advised employers wanting to test non-symptomatic staff to consider private alternatives to NHS Test and Trace.

New measures to suppress the virus were announced on 22 September, including new restrictions in the leisure and hospitality sectors, additional requirements for workers in customer-facing businesses to wear face-coverings when in areas open to the public, along with a reversion to the position that office workers should work from home over the winter if they can do so effectively (although public sector employees in essential services should continue to go to work where necessary).  The Coronavirus outbreak FAQs were amended to advise that there should be a consultation between employer and employee about whether the employee can carry out their normal duties from home. Clinically vulnerable individuals can continue to attend the workplace if it is Covid-19 Secure, although they should work from home if possible. Anyone with COVID-19 symptoms should not go to work, but should self-isolate and take a test, and employers should not require self-isolating employees to come into work.

We are currently working with a number of clients on their return to work strategies and completion of risk assessments. Please contact us if you would like to discuss any of these issues further.