The Test and Trace Scheme: what does it mean for employers?

Read the latest about the scheme, which asks those who have had close contact with someone who has COVID-19 to self-isolate, and has implications for employers

29 July 2020

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 are now being asked to register via the NHS Test and Trace website and identify any individuals that they have recently been in close contact with. Contact tracers will then notify those considered to be at risk and ask them to self-isolate at home for 14 days, 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;
  • 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 or large vehicle or being close to them on a plane.

An interaction, which has taken place through a Perspex (or equivalent) screen, will not count as sufficient contact.

What does the scheme mean for employers?

With the easing of the lockdown restrictions across the UK, many employees are now back in the workplace. The scheme means that employers may face increased employee absences at short notice. Employers who are able to put in place 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. Although taking part in the scheme is voluntary for individuals, the government is asking employers to encourage employees to adopt the scheme, follow the guidelines and inform their employer of any request to self-isolate.

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. Employers who have workplaces such as offices, constructions sites, factories, laboratories and warehouses should also retain a record of staff members shift patterns for 21 days 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.

Furthermore, with people’s health and safety being at the forefront of employers’ minds, employers should support their employees if they are required to immediately leave work and self-isolate at home. Employers should also look to ensure that employees who are self-isolating at home do not feel pressured to attend the workplace. Many employees will, of course, be able to work from home assuming they are not unwell.

The government has also published additional guidance, which applies to particular sectors including the hospitality sector, tourism and leisure sector, hairdressers, tailors, barbers, places of worship and facilities provided by local authorities. The government is asking employers in these sectors to 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 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. 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 refuse to self-isolate

Where an employee refuses to self-isolate and wishes to return to the workplace, an employer should first consult with the employee to try establish the reasons for this, with an aim to resolving any concerns the employee has.

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 be at risk of being in breach of its duties under the HSWA and other duties and so the employee should understand that they may 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 resolve any issues in regards to self-isolation. 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). 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, consider whether the employee is able 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. 4) Regulations 2020 have been updated to cover those individuals who have been instructed to self-isolate via the Test and Trace scheme. Employees will be entitled to SSP for the 14 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 14 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 14 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. 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 14 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 can then stop self-isolating and 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 are expected to let the employer know immediately if they have been contacted by the NHS
  • confirming that employees should 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 want any way 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 and may amount to misconduct
  • setting up a system for recording 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.

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Katie Russell Partner

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