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The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020: What impact will the Regulations have on employers?

We take a look at the new Regulations which came into force at midnight on 28 September 2020 and what impact will the Regulations have on employers?

The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (“the Regulations”) came into force at midnight on 28th September 2020. The Regulations apply in England only.

The Regulations have been implemented in an effort to stem the increase in positive cases of COVID-19. They impose criminal sanctions for breach on employers and workers ranging from £1,000 up to £10,000

The detail

The Regulations apply to any adult who is notified after 28 September 2020 (other than by the COVID-19 app) that:

  1. they have a positive COVID-19 test result; or
  2. they have come into close contact with a person who has tested positive; or
  3. a child they are responsible for has tested positive; or
  4. a child they are responsible for has come into close contact with a person who has tested positive.

In such circumstances the adult must self- isolate, or as in the case of a child, ensure the child self- isolates for the period specified in the Regulations.

If requested, they must notify the relevant authorities (Secretary of State, a specified employee of the NHS, or local authority) of the address details they will self- isolate at and persons present at that address (in the case of a positive test result) if requested.

Requirements on employers

The Regulations provide that employers will be guilty of an offence if they knowingly allow a worker or agency worker who is required to self-isolate to attend any place for a purpose relating to their employment (other than the address where they should be self- isolating). The Regulations are drafted broadly in this respect, and will catch employers who know their employee is self- isolating, yet still allow them to work (other than working from home).

Requirement on employees

Workers who are self- isolating, or aware of the requirement to self- isolate are required to notify their employer that they are required to self- isolate, including the start and end date of the isolation period. Workers must notify their employer as soon as reasonably practicable, and in any case, before their next day of work if this is within the isolation period.

Agency workers who are self- isolating must notify their agent, the principal or their employer (where that person is not the agent or a principal), of the requirement to self- isolate including the start and end dates of the isolation period.

Enforcement & sanctions

Breach of the Regulations is a criminal offence liable to a fine ranging from £1,000 (for a first offence) up to £10,000 (for repeated infringements). Both employers and employees can be liable for this fine.

The Regulations can be enforced by “authorised persons” - such as police officers or an officer acting for the local authority – who are able to direct those who are required to self- isolate to return, or remove them to the place where they are self- isolating.

Comment

The Regulations are unlikely to cause too many difficulties for employers whose workers are able to work from home whilst self-isolating. However, they are likely to be problematic for employers whose workers are unable to work remotely, particularly in the forthcoming winter months if, as expected, the number of cases continues to rise.

We suggest that employers take reasonable steps to advise their staff of their obligations under the Regulations, including the requirement to notify the organisation as soon as they are required to self-isolate and the relevant dates that this will apply. A failure by staff to comply with this instruction will not only amount to a criminal offence under the Regulations but may also result in disciplinary action.

Aside from the financial costs associated, breach of the Regulations may also result in reputational damage and a breach of health and safety legislation. Concerns raised by employees about health and safety in the workplace may constitute “protected disclosures” for the purposes of the whistleblowing legislation; and employers should ensure that those who raise such concerns are not subjected to a detriment or dismissed as a consequence of raising such concerns.

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