Regulations come into force today which impose new obligations on employers in England to help enforce the coronavirus self-isolation regime.
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 apply to any person who is officially notified (other than via the NHS Smartphone app) that they have tested positive for Coronavirus or been in close contact with someone who has, in either case after 28 September. “Close contact” means face-to-face contact with someone less than one metre apart, spending over 15 minutes within two metres of someone, or travelling in a car or other small vehicle (i.e. not a bus) with an individual or in close proximity to someone else on an aeroplane. Boats and trains get no specific mention.
That person is then required to self-isolate and must generally notify the authorities both of the address where they will do that and of anyone else in the same household. They must then stay at home, leaving only for a very limited number of permitted purposes, including obtaining medical treatment for themselves or a pet, fulfilling a legal obligation such as attending a court or Tribunal, attending the funeral (but not wedding) of a close family member and obtaining “basic necessities” where it is not possible to obtain these in any other manner [NB, the usual threshold in legislation is that which is “not reasonably practicable”, so demonstrating that it is actually impossible to obtain your basic necessities except by leaving the house is a high burden indeed].
So much we know. What is new are Regulations 7 and 8.
Regulation 8 says that once notified of the obligation to self-isolate, the worker must tell his employer as soon as practicable and in any case before he next goes back to the workplace. Regulation 7 then says that an employer aware that a worker is required to self-isolate must not knowingly allow that person to attend anywhere “other than the designated place” (i.e. his home) during the isolation period “for any purpose related to the worker’s employment”. [Although the new Regulations refer to “employer” and “employment”, they apply equally to workers and agency workers. This is not an issue for Schedule E employees only].
A handful of key points for employers:
I. If the employee fails to notify the employer in line with Regulation 8, he commits an offence.
II. If the employer is aware of that obligation to self-isolate but nonetheless requires or allows the employee to do something work-related anywhere else in breach of Regulation 7, then it also commits an offence.
III. Individual Company directors and managers can also commit an offence under the new Regulations if there is a breach of Regulation 7 by the employer which is found to have been committed through their negligence or with their consent or connivance.
IV. The new Regulations are enforced by a fixed penalty regime under which the guilty party (employee, company, director) is fined £1,000 for a first offence up to £10,000 from the 4th offence onwards. There is no requirement that each fixed penalty notice applies to the same worker, so the financial consequences for an employer or director of allowing multiple employees to continue to come in or travel on business knowing that they should not could be very significant.
V. There is no requirement that the employer’s awareness of the requirement to self-isolate should have come direct from the worker in question via Regulation 8. An indication from a colleague or family member would also usually suffice. Equally, the Regulations refer only to the actual awareness of the employer, not to any constructive knowledge, i.e. where it suspected or ought reasonably to have known, but did not join the dots. It is likely given the Public Health objective of these Regulations that an employer turning a blind eye or not asking obvious questions in such circumstances would be found to have been aware nonetheless.
VI. The employer is not responsible for the worker’s breach of the self-isolation rules unless he is out and about for a purpose related to his employment. It would therefore make good sense for employers to notify both the worker and his line manager in writing that he should not be requested, let alone required, to leave his house for any work purposes, however fleeting. Indeed, if the second wave of the coronavirus is even half as serious as it now appears may be the case, it may make good sense for employers to provide all their employees and workers with a brief pre-emptive written reminder of these new rules anyway, whether they are currently WFH or not.
VII. Nothing in these Regulations prevents a self-isolating worker from carrying out his activities at home or the employer from requiring compliance with all and any other incidental obligations of his doing that work, except anything requiring the worker to leave his designated place of self-isolation.