End to Self-Isolation in England (HR Consultant view).
Updated: Feb 24
From today (February 24th 2022), most Coronavirus restrictions in England have been repealed, including the legal requirement for anyone in England to self-isolate following a positive test for COVID-19.
This announcement naturally poses some serious questions for us as HR Consultants.
Those who receive our HR Services will already know we like to try and think outside the box when guiding our small business and regulated sector clients. So, it’s probably no surprise that upon hearing the announcement, the first thought I had with my HR Consultant hat on was – “ well, that’s going to cause some serious problems with S44(1A) of the Employment Rights Act 1996 for someone “. I’ll touch on my thoughts on that one later – but here’s our take as your HR Consultant’s on what this means for employers and small businesses in a Q & A style.
1. Can I still ask/enforce those who test positive to self-isolate?
Short answer – it’s complicated. But, effectively, yes. Ultimately, as an employer, you still have a duty to all employees in terms of the Health and Safety at Work Act 1974, and you can still issue reasonable instructions as part of the Health and Safety requirements for your organisation that employees have a statutory duty to comply with.
All organisations should continue to have risk assessments in place, and COVID-19 will needlessly still form a part of this for the foreseeable future.
As with everything related to Health and Safety – having a clear policy, procedure, and risk assessment in place will be key to this. Therefore, if your risk assessment policies and procedures are clear in this regard, this should be fine.
For clarity, we have used the word self-isolate to mean isolation from the office/colleagues. You can tell an employee to remain away from the workforce while infectious, but you cannot necessarily tell an employee they cannot walk their dog in their own time, for example.
Employers should also note that Government Guidance until April 1st (at the least) is for people to continue self-isolating for five days following a positive test.
2. Do I have to pay an employee I have asked to self-isolate?
This one is slightly trickier as if an employee is “ready, able and willing” to work, they remain entitled to their contractual pay.
If a job can still be performed from home, such a policy is reasonable and will work from home.
The challenges will apply when an employee tests positive but is symptomless. Although this may be a rare situation – the employer may wish to consider realistically finding any duties and employee can conduct from home / away from the office as this may leave them liable to pay the employee for their time away from the workplace.
There may be exceptions where an employer can claim that an employee is “unable” to work under a positive COVID test.
3. What can I do if I have a policy instructing an employee to self-isolate (from the workplace) and breach it?
Ultimately, depending on the serious nature of the breach, an employer would be entitled to treat this as they would any other health and safety breach and consider it a conduct issue in line with their disciplinary procedures.
Employers may wish to be mindful that an employee is now under no legal obligation to tell an employer they have COVID-19.
Cases such as this will undoubtedly be an area to keep an eye on as further guidance is issued and Employment Tribunals deal with them, as this will undoubtedly shape the employment landscape for a while to come.
4. What is Section 44(1A) of the Employment Rights Act, and why would this worry an HR Consultant?
S44(1A) states that:
A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer done on the ground that—
(a)in circumstances of danger which the worker reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, he or she left (or proposed to leave) or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work, or
(b)in circumstances of danger which the worker reasonably believed to be serious and imminent, he or she took (or proposed to take) appropriate steps to protect himself or herself or other persons from the danger.
Should any employee – leave their place of work suddenly or immediately (particularly after speaking with a colleague), employers may wish to remain mindful of the implications of this section of the ERA.
In theory, employees may claim against their employer if they were disciplined or suffered any detriment for leaving the premises if a colleague they work near has tested positive for COVID-19.
As with everything since March 2020 – this latest development has certainly given us as your HR Consultants something to think about.