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Claire Merritt | 28th May 2020

NHS Test and Trace – entitlement to statutory sick pay


Claire Merritt | 28th May 2020

NHS Test and Trace – entitlement to statutory sick pay

On 27 May 2020, the new ‘Test and Trace’ system was launched in England with the aim of helping ‘return life to normal, in a way that is safe and protects our NHS and social care.’ In line with this new system, entitlement to SSP has today been extended, so that anyone who has been told to isolate in line with the system will be entitled to SSP.

How does the Test and Trace system work?

The success of the new NHS Test and Trace service depends on everyone playing their part in the fight against COVID-19. Government guidance on the test and trace system applying to England has been released which should be read carefully. The guidance encourages individuals to help in the following ways:

  • If someone develops symptoms, they must continue to follow the rules to self-isolate for 7 days and order a test to find out if they have COVID-19. Tests can be ordered via the NHS Coronavirus website page or the person can call 119 if they don’t have internet access. Anyone else in the household must self-isolate for 14 days from when the individual showed symptoms.
  • If they test positive, they must share the information promptly about their recent contacts through the NHS test and trace service, which will help trace other people who may need to self-isolate.
  • If an individual has had close and recent contact with someone who has COVID-19, they must self-isolate for 14 days if the NHS test and trace service advises them to do so.

If someone tests positive for COVID-19, they will be sent a link to the NHS test and trace website and asked to create a confidential account where they can then record details about their recent close contacts. This can also be done over the phone and disclosing the information to a designated contract tracer. Due to the sensitive personal nature of this data, the system will have to abide by strict data protection rules. When people who could be at risk are then contacted, they will not be told the identity of the individual who initially tested positive for COVID-19.

As stated above, individuals who are then alerted by the system will be told to self-isolate for 14 days, regardless of whether they have symptoms or not. If they develop symptoms, they must then book a test. If the test is positive, they must continue to stay at home for at least 7 days, during which they will be contacted by a member of the service. If the test is negative, they must still complete the 14-day isolation period because the virus may either not yet be detectable in that person, or they could be asymptomatic.

Entitlement to SSP

Normally, in order to be eligible for SSP, an individual must:

  • be classed as an employee and have done some work for their employer
  • have been ill for at least 4 days in a row (including non-working days)
  • earn an average of at least £118 a week
  • tell their employer they’re sick before any deadline that the employer may have specified for notifying absence, or within 7 days if they do not have one.

From an employment law perspective, the concept of self-isolation has continually raised questions in relation to entitlement to SSP, and we have seen various amendments to the Statutory Sick Pay (General) Regulations 1982 (which contains the definition of “persons deemed incapable of work”) be introduced.

Following an amendment on 28 March 2020, a schedule was introduced into the regulations which provided that an individual would be deemed to be incapable of work and therefore entitled to SSP where:

  • they have symptoms of Coronavirus, however mild and are staying at home for seven days, beginning with the day on which the symptoms started (day 1);
  • they live with someone who is self-isolating (as above) and are staying at home for 14 days, beginning with day 1;
  • they are already self-isolating in accordance with the second bullet (above), develop the symptoms of Coronavirus, however mild, and are staying at home for seven days, beginning with the day the symptoms started;
  • they have been defined in public health guidance as extremely vulnerable and at very high risk of severe illness from Coronavirus because of a health condition and has been advised, by notification, sent to, or in respect of that person in accordance with that guidance, to follow rigorous shielding guidance.

The latest amendment

Today, the schedule has been amended by The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 4) Regulations 2020. This inserts a new paragraph 5B into the schedule which provides entitlement to SSP where the person:

“(a) has been advised by a relevant notification that he has had contact with a person who at the time of the contact was infected with Coronavirus, and

(b) is staying at home until the end of the period of 14 days beginning with the latest date on which that contact occurred, or (if sooner) until the date specified in the latest relevant notification.”

The “relevant notification” covers circumstances where an individual has been told to self-isolate by the NHS Test and Trace service.

Therefore, employees who have been notified that they have had contact with a person with Coronavirus, and who is self-isolating for 14 days a result, will be entitled to SSP. This will be the case regardless of whether they develop symptoms of COVID-19 during that 14-day period or not.

At present we are unsure what documentary evidence the NHS test and trace service will provide to those told to self-isolate under the scheme. It would be sensible for employers to ask for some evidence either an email or screen shot.

Importantly, employers should start thinking about contingency planning as the new tracing arrangements could mean large numbers of employees are off work at one time. This practicality of this system will no doubt become obvious over time.

If you would like further guidance in relation to the above, please contact a member of the employment team.

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This update was co-written by Adam Wheal, Trainee Solicitor and Claire Merritt, Partner.

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