12 January 2021

How does the scheme work?

The NHS Test and Trace service forms a central part of the government’s coronavirus recovery strategy. Those who have tested positive for COVID-19 may be contacted by contact tracers or asked to register via the NHS Test and Trace website and identify any places they have visited recently and individuals that they have recently been in close contact with. Contact tracers then notify those considered to be at risk and ask them to self-isolate at home for 10 days after the last contact with the person who has tested positive, regardless of whether they are displaying COVID-19 symptoms.

What is close contact?

The NHS Test and Trace guidance defines a close ‘contact’ as an individual who has been in close contact with someone, who has COVID-19, anytime from 2 days before their symptoms started up to 7 days from the day their symptoms started. A number of examples are given as to what constitutes ‘close contact’ including:

  • having face-to-face contact (less than 1 metre away) with someone who has COVID-19 (including times where you have worn a face covering);
  • spending more than 15 minutes (within a 2 metre distance) with someone who has COVID-19; or
  • travelling with someone, who has COVID-19, in a small vehicle or being close to them on a plane.

What does the scheme mean for employers?

Although employees in England should work from home unless they cannot reasonably do so and in Scotland only for an essential purpose can those who cannot work from home continue to travel to the workplace (subject to any local restrictions in place). The scheme means that employers may face employee absences at short notice. Government guidance on making workplaces COVID-secure should mean that employers who follow this guidance and ensure adherence with the appropriate social distancing rules for their workplace should be able to reduce the risk of employee absence. This is because, if social distancing is correctly adhered to, employees who work with an employee who receives an alert from a contact tracer will not have been in ‘close contact’ with that employee and so should not need to self-isolate. The government has issued guidance for employers (see links below) on how they can support the NHS Test and Trace scheme and The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (the 'Self-Isolation Regulations') which came into effect on 28 September set out obligations for employers in England in relation to the scheme. It is a legal requirement for individuals to self-isolate when told to by NHS Test and Trace and employers must ensure that their employees self-isolate if they have been notified to do so and support them to do so.

Under the Self-Isolation Regulations employers in England must not knowingly require or encourage someone who is being required to self-isolate to come to work. An employer who breaches their obligations under these regulations may be liable to pay a fine starting at £1,000. Employees must notify their employer if they are required to self-isolate with the start and end date of the isolation period and may be subject to a fine of £50 if they breach this obligation, in addition to their legal requirement to comply with the self-isolation which is punishable by a separate fine starting at £1,000 payable if the requirement is breached. Many employees will, of course, be able to work from home assuming they are not unwell.

To assist with any potential COVID-19 outbreak, employers should ensure that they have up-to-date contact details for all of their staff members, including their full name and phone number and retain a record of staff members shift patterns for 21 days. Employers who have workplaces such as venues in hospitality, the tourism and leisure industry, close contact services and local authority facilities must retain such staff records and up-to-date contact details to assist the NHS Test and Trace scheme. Employers should inform their employees of the reasoning behind the collection of their data, only collect data that is necessary for the purposes of the NHS Test and Trace scheme and have clear and accessible privacy information in place before collecting the data.

The government has also published separate additional guidance applicable to England and Scotland, which applies to particular sectors. The English sector specific guidance includes the hospitality sector, tourism and leisure sector, hairdressers, tailors, barbers, places of worship and facilities provided by local authorities. The Scottish guidance includes call centres, farming, financial services, retail, tourism and hospitality and universities. Employers in specified sectors such as hospitality must retain a record for 21 days of any customers or visitors who attend their establishment. Businesses should obtain the person’s name and phone number, and the date and time they attended the establishment and should note any staff member they were in close contact with, for example the particular hairdresser who cut the person’s hair. If individuals arrive in a group, only the number of people in the group and one person’s name and phone number from that group is required.

It is vital that both employers and employees handle personal data correctly in order to avoid a potential breach of the Data Protection Act which can have severe financial consequences. Employers should inform the customer or visitor of the reasoning behind the request for the information (i.e. for the purposes of the NHS Test and Trace scheme), and explain to them who will have access to the data and how long it will be retained for. This can be done by a notice at the premises or on the company website, for example. Designated venues in England must also display an official NHS QR code poster to enable visitors to scan the NHS QR code when they arrive using the NHS COVID-19 app. Designated venues include establishments in the following sectors, whether indoor or outdoor venues or mobile settings; hospitality, tourism and leisure, close contact services, community centres, libraries and village halls. Employers who are collecting customers or visitors’ data must have data handling procedures in place. Employers must also ensure that their employees know how to handle the data safely and securely, and that they understand what they can and cannot do with the data (i.e. the data can only be used for the purposes of the NHS Test and Trace scheme and not for any marketing purposes).

All of this data can then be used to assist the NHS Test and Trace scheme if there is an outbreak. If there is more than one case of COVID-19 in a workplace, employers should alert their local health protection team. After 21 days, any visitor or customer data, along with any data on staff members shift patterns, should be deleted.

Employees who breach the Self-Isolation Regulations

Where an employee refuses to self-isolate and wishes to return to the workplace, an employer should first consult with the employee to try to establish the reasons for this, with an aim to resolving any concerns the employee has. The employer should then explain that the employee is legally obligated to self-isolate when asked to by NHS Test and Trace and that the employee cannot return to the workplace until their period of self-isolation is complete.

From 28 September, under the Self-Isolation Regulations, where an employer in England is aware of a worker’s requirement to self-isolate an employer must not knowingly allow a worker to attend the workplace during their isolation period or they will be liable to pay a fine starting at £1,000.

Additionally under the Health and Safety at Work Act 1974 (HSWA), an employer is under a duty to provide a safe place of work and protect the health and safety of its employees. Employers also owe common law duties and other duties to their employees in relation to health and safety. If an employer is aware that one of its employees has been instructed to self-isolate via the NHS Test and Trace scheme, but allows or encourages the employee to come into the workplace, the employer could be putting the health and safety of other employees at risk. Therefore, it is likely that the employer would also be at risk of being in breach of its duties under the HSWA and other duties and so the employee should understand that they will not be permitted to return to company premises during any period of self-isolation.

We therefore advise employers and employees to work together to try to resolve any issues in regards to self-isolation and ensure employees self-isolate when required to do so. The most likely reason why an employee will be reluctant to self-isolate is because they will lose out on pay if they are put onto statutory sick pay (SSP) (see below). Employers should consider, therefore, whether there is any work that the employee might be able to do from home even if it outside of their usual remit. Alternatively, the employer may be able to offer the employee the option to work additional hours on their return.

Employees who are asked to self-isolate under the Test and Trace scheme, and are unable to work from home, are entitled to receive SSP. Alternatively, employers may consider offering the employee the option to take paid annual leave if they prefer.

Statutory Sick Pay

The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 7) Regulations 2020 (applicable to England, Scotland and Wales) have been updated to reflect the reduction in the self-isolation period advised by the government in their public health advice those individuals who have been instructed to self-isolate via the Test and Trace scheme. As the public health advice provides that the 10 day isolation period begins on the day after symptoms start (or if asymptomatic on the day of their test), anyone who tests positive or is a household contact of someone who tests positive will be deemed incapable of work if they self-isolate for 11 days. Employees will be entitled to SSP for the 11 day self-isolation period, regardless of whether they are displaying COVID-19 symptoms. Employers with fewer than 250 employees on 28 February 2020, and who paid out SSP due to absences related to COVID-19, are able to recover up to 11 days of SSP per employee from the government. Employees who are required to self-isolate may also be entitled to company sick pay depending on the rules of the scheme.

If an employee is able to work from home during the 10 day self-isolation period, they should do so. They will be entitled to be paid at their usual rate and will not be entitled to SSP. This would be the case where an employee has been notified to self-isolate by a contact tracer, but feels healthy and is showing no symptoms.

Currently, subject to a couple of exceptions, people can only be tested if they have symptoms of COVID-19, live with someone who has symptoms, work in a hospital or care home or are in an area with community testing. Where an employee who has been contacted by a contact tracer develops symptoms whilst self-isolating, and subsequently tests negative for COVID-19, the employee must still complete the 10 day self-isolation period.

Point to note: an employee who develops symptoms (but has not been contacted by a contract tracer) and subsequently tests negative for COVID-19 may return to work.

Practical Steps

Employers should consider what practical steps they can take to ensure that employees are supported in any request to self-isolate, including:

  • confirming that employees must let the employer know immediately if they have been contacted by the NHS
  • confirming that employees must comply with any request, and are not expected to finish their shift
  • asking employees to provide a copy or confirmation of the formal notification they received from the NHS (either a phone call, letter, email or text message) which the employer will need to claim any rebate for SSP and will need to validate the absence
  • reminding employees to update their employer should they develop symptoms
  • obtaining up-to-date contact details of all staff members
  • supporting any employees, who are able to do so, to work from home
  • providing details to employees of how they will be paid during any period of self-isolation
  • considering contingency plans, to ensure there is appropriate resource to cover any critical tasks if unexpected absences occur
  • reminding employees that any attempt to return to work in contravention of a request to self-isolate, or a failure to let the employer know they have been contacted, could put others at risk, will not be allowed and may amount to misconduct
  • setting up a system for recording and securely storing customer contact details for those sectors to which this requirement applies.

Full details of the guidance can be found here:

If you would like further advice on any of the issues discussed above, please contact Katie Russell or your usual Burges Salmon contact.

Key contact

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Katie Russell Partner

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