Permitting a worker to break their self-isolation: new regulations and what this means for employers

New self-isolation regulations to curb the recent rise in Coronavirus infections (announced at midnight on Sunday 27 September) confirm it is now an offence for an employer to knowingly permit a worker to break their self-isolation. 

What are the new self-isolation regulations?

The new self-isolation regulations are called the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 and focus on the principle of self-isolation. They directly affect employers and their workers.

If a person has been told they must self-isolate for any reason, it is now an offence for an employer to knowingly permit a worker to attend any place other than where the individual is self-isolating.

In other words, if an employee has tested positive for Coronavirus, one of their co-habitants has tested positive for Coronavirus or they have been notified by Track and Trace that they must self-isolate, they must not attend their workplace and they must stay at home.

If an employer has knowledge of the fact that an employee should be self-isolating but encourages or permits the employee to attend work, the employer will be in breach of the regulations.

What is the penalty?

If an employer knows one of its workers should be self-isolating and does not prevent them from attending work, they will be liable to a fine starting at £1,000 and rising to £10,000 for repeated or serious breaches. Accordingly, the new regulations place a legal duty on employers to stop those workers from attending work and potentially spreading Coronavirus.

Are there any obligations on the employee?

There is also an obligation on the worker to tell their employer that they are self-isolating. Any individual who breaches self-isolation will, normally, commit a separate criminal offence. This will likely lead to a separate fine for the individual.

What should employers be doing?

Employers must take the rules on self-isolation seriously and respect workers who are required to self-isolate by law.

Employers cannot encourage individuals to attend work on the basis that the worker has not, themselves, tested positive for Coronavirus as the regulations clearly extend further and cover those who have tested positive in the same household and self-isolation notices under Track and Trace.

Employers should also not encourage workers to ignore a requirement to self-isolate because there is PPE available or because the workplace is Covid secure. This is not a risk-based decision for the employer and worker to make; it is a legal requirement.

The message is simple; if someone has been told to self-isolate their employer should support them to do this and will be penalised if they do not.

As the regulations place a requirement on workers to tell their employer when they need to self-isolate, we would strongly recommend that all businesses highlight this fact to all staff and make it very clear what they are required to do.

The best way to communicate this will depend on the business and how other important messages are shared. Some examples include: visible signs in the workplace, emails or text messages to all staff, sharing the information at daily or weekly briefings, posting it on the internal website or sending a letter in the post.

Employers should also keep in mind their obligations to protect the health and safety of all members of staff. If a worker fails to inform their employer of their self-isolation and continues to work, in breach of these regulations, the employer should consider whether disciplinary action is appropriate. If clear guidance has been given to all staff this will make it easier to demonstrate that a reasonable management instruction has been given to all staff.

If you have any questions about these new regulations or the impact on business of the self-isolation rules, please get in touch with a member of the Employment team.

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This blog was co-written by Fred Chandler, Trainee Solicitor, and Charlotte Farrell, Associate