Below, pupil barrister Chevan Ilangaratne discusses when self-isolation is guidance and not law and, as a result, what employers should do.
The government’s plans to replace the legal requirement to self-isolate following a positive Covid-19 test, with mere guidance to that effect, raises a number of key questions for employers. If, as the Prime Minister’s official spokesman said, the government “…would never recommend anyone goes to work when they have an infectious disease”, does this mean that employers have to allow their staff to self-isolate and pay them accordingly? This article explores the various considerations for employers when self-isolation is no longer legally required.
What will change?
Currently, if an individual tests positive for Covid-19, you are required by law to self-isolate for ten days, with the option to reduce this to five days providing negative tests are recorded on day five and six of isolation. Failure to follow these rules, without a reasonable excuse, could lead to criminal sanctions.
What legal obligations will employers continue to have?
If the Covid-19 self-isolation rules become guidance, employers will still have legal duties to protect the health and safety of their staff so far as possible.
Employers have a common-law duty of care to their employees to take reasonable care to avoid the risk of injury to them. In addition, under the Health and Safety at Work Act 1974 (HSWA) every employer has a duty to ensure that, so far as is reasonably practicable, the health, safety and welfare of employees are protected; and under the various Regulations made under HSWA, there are various statutory duties, a breach of which gives rise to private causes of action. Under the Management of Health and Safety at Work Regulations 1999 (MHSWR), employers must make a “suitable and sufficient” assessment of risks to health and safety risks to their employees at work.
Turning to causes of action available to employees if they take avoiding action because their workplace poses a risk, s.44 Employment Rights Act 1996 (ERA) provides that an employee has the right not to be subjected to any detrimental act, or failure to act, by the employer on the ground that the employee left or refused to return to work or took appropriate steps to protect themselves because the employee reasonably believed s/he was in serious and imminent danger. S.100 ERA provides the right not to be dismissed for the same reasons.
In addition, ss. 47B and s.103A ERA protect workers or employees who suffer detrimental treatment for making a relevant disclosure, in relation to health and safety risks or breaches of legal obligations.
How, then, can an employer balance these continuing legal obligations with the proposed changes to the requirement to self-isolate?
(1) Employee is Covid-19 positive and can work from home
For employees who are ill due to Covid-19, it is sensible for employers to give them time off, assuming that supporting medical evidence is provided.
However, there may be circumstances in which an employee tests positive for Covid-19, but is symptomless (or has mild symptoms), and is consequently well enough in principle to work. Of course, employers can still permit their staff to follow government guidance. In those circumstances, adequate work from home arrangements will be a sensible alternative if possible. This is especially so, if there is already provision to work from home.
If an employee is working from home, employers should be mindful that they still have the same health and safety responsibilities for homeworkers as for any other workers and are responsible for their employees’ welfare, health and safety, ‘so far as is reasonably practicable’ (s.2(1) HSWA).
(2) Asymptomatic employee is Covid-19 positive and cannot work from home
If the asymptomatic employee wishes to self-isolate and working from home is not possible, the position is more finely balanced. There are a number of factors to consider.
First, and most straightforward, is the issue whether the employee in question is or might be relevantly disabled under s.6 Equality Act 2010 (EqA), such that, although asymptomatic, s/he might still be placed at a relevant disadvantage by contracting the virus and being required to go into work. This situation could arise in the case of an employee with acute anxiety, for example. This would trigger the duty to make reasonable adjustments. It is likely to be prudent for employers to allow such employees to self-isolate.
Second, and less straightforward, is the relevance of the employer’s legal obligations to other employees who may be exposed to the virus by way of their Covid-19 positive colleague/s coming into work. The fact that the government will have downgraded self-isolation from a legal requirement to merely desirable, could be grounds for an employer to argue that the risk is no longer so serious that allowing such an employee to work constitutes a substantial enough health and safety risk to other employees.
(3) Entitlement to sick pay
If an employer does decide that an employee should remain at home, or the employee insists on self-isolating, the issue of sick pay becomes live. The starting position in determining the obligation to pay sick pay (full or otherwise) is the contractual position, including express and implied terms and any relevant handbook or policies; and whether the contract has been varied by agreement and if so, whether a reversion to the original contract is possible. On the face of it, there are few sick pay provisions which would be construed widely enough to cover a period of non-mandatory asymptomatic self-isolation.
In relation to employees with disabilities under s.6 EqA, in some narrow circumstances it could be a reasonable adjustment to pay sick pay for the period of self-isolation even if that goes beyond the existing contractual agreement (see by analogy Griffiths v SoS for Work and Pensions [2015] EWCA Civ 1265).
(4) If an asymptomatic employee insists on self-isolating following a positive Covid-19 test, could this amount to a conduct issue?
Ultimately, this depends on whether the employer’s requirement for the employee to attend, constitutes a reasonable management instruction in all the circumstances, including the employer’s legal obligations to protect the health and safety of their staff.
If employers take disciplinary action against employees who so refuse to come in for these reasons, the employee could have a claim under ss.44 and 100 ERA, and/or ss.47B and s.103A ERA.
Having said this, however, the first instance cases to emerge so far do suggest that ETs are taking a reasonably robust approach to employees’ claims relying on theoretical exposure to Covid. The first instance decision in Mr D Rogers v Leeds Laser Cutting Ltd: 1803829/2020 under s.100 ERA, is persuasive authority that a reasonable belief that serious and imminent danger must be down to something directly linked to working conditions, or possibly commuting into work, rather than a general fear of the virus (see para.65-66 in particular). If this direction of travel continues, one might reasonably foresee an ET being reasonably sceptical about the claim of an employee who refuses to return to work, given the reduced risk that the downgrading of the self-isolation requirement signals.
Concluding remarks
Clearly, every case depends upon its own facts; and every organisation will have particular considerations to which it will have regard. The key point is that every decision should entail a balancing of the competing factors and consultation with relevant individuals or groups. Provided that this approach is taken, employers should be able to tread through the next stage of the legal minefield created by the pandemic with reasonable confidence.
