The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into force in England at noon on 28 September 2020 (“Self-Isolation Regulations”). They make it an offence for an employer to knowingly allow a worker who is self-isolating to attend any place other than the “designated place” where the individual is spending their period of self-isolation (in most cases, their home) for any purpose related to the worker’s employment. Employers will be subject to a fixed penalty notice of £1,000 for the first offence, rising on a sliding scale to £10,000 for a fourth and any subsequent offences.
The employer offence is set out in Regulation 7 of the Self-Isolation Regulations. It is wider than it might first appear. An employer will have committed the offence if it knowingly “allows” a worker to contravene their self-isolation: the employer does not have to require or even facilitate the worker breaching their self-isolation, and the employer may be liable even when the employee voluntarily leaves their designated place for work-related reasons.
The scope of the offence extends to the employee attending any place, other than the employee’s designated place, for “any purpose related to the worker’s… employment”. The offence is not, therefore, limited to the employee attending the employer’s premises. The employer could be liable if the employee attends, for example, a client’s premises for work-related reasons. Even seemingly innocuous encounters, such as a self-isolating worker attending another colleague’s home to collect work-related documents, while maintaining social distancing and without entering the colleague’s home, would be caught by these Self-Isolation Regulations and, if the employer was aware of the encounter, the employer would have committed an offence.
The Self-Isolation Regulations also introduce a new offence for workers. Under Regulation 8, where a worker is aware of the requirement to self-isolate, and they are “due to work or undertake any other activities related to [their] employment during the isolation period, other than at their designated place”, the worker must notify their employer of the requirement to self-isolate and the start and end dates of the isolation period. The worker must notify their employer as soon as reasonably practicable and, in any event, before the worker is next due to start work within the isolation period. This requirement to notify their employer only arises where the worker is due to undertake work-related activities at a location other than their designated place. Given that many office workers are now back working from home, it may be that this notification requirement is not triggered in many cases and the employer may remain unaware of the fact that their worker is currently self-isolating.
The employer offence under Regulation 7 is limited to when an employer “knowingly” allows an employee to breach their self-isolation. It is unclear what will constitute knowledge in these circumstances: for example, if an employee informs a junior member of staff who fails to convey the message to management, will the employer be deemed to have constructive knowledge of the worker’s requirement to self-isolate? The notification requirement under Regulation 8 does not specify that the notification needs to be in writing. It is, therefore, conceivable that a worker may incorrectly assume that their manager understands that the worker is required to self-isolate and that the worker has, therefore, discharged their obligation to notify (for example, having informed their manager that the worker’s child has a temperature and is currently off school).
In view of the coming into force of these new Self-Isolation Regulations, and the potential liability of employers to fixed penalty notices, it would be wise for employers to update relevant policies and communicate these to members of staff, setting out clearly the restrictions on self-isolating workers and the new obligation on workers to notify their employer when they are required to self-isolate. Employers may want to implement specific procedures for workers to notify their employer under Regulation 8; for example, stipulating that such notification needs to be in writing and also to whom such notifications be made.
Lloyd Davey
Sarah Taylor