From this week, people in England identified by NHS Test and Trace as being in contact of someone testing positive for COVID-19 are now able to opt in to take part in a trial of daily lateral flow device testing as an alternative to self-isolation.
Those who opt in will be randomly split into two groups:
- The first group will be given one PCR test and asked to self-isolate for the full 10-day period;
- The second group will be given two PCR tests and 7 LFDs to test themselves each morning for 7 days. People who test negative and develop no symptoms will be exempt from the legal duty to self-isolate that day and can leave their home to carry out essential activity, including attending work.
The new study allows for up to 40,000 people to be placed in each group and the current test, trace and isolate scheme is likely to be reviewed by 21 June so it appears that the testing study is likely to be available to most people who wish to participate.
An employer can still require employees to inform them if they are identified as a contact. Where employees can work from home, the employer can ask them not to attend the workplace even if they opt into the scheme and are placed in the second group.
Workplace issues
However, for roles which cannot be done remotely, it could leave employers facing a number of issues.
Most COVID-19 workplace risk assessments, policies and protocols will include requiring employees who are contacts of people who have tested positive not to attend workplaces outside the home. These may need to be reviewed.
Consultation will be required for changes affecting workplace Health and Safety. Even if the employer is satisfied that its workplace protocols don’t need to change, a change to the risk level faced by employees will require consultation.
If workers identified as contacts attend the workplace, other employees or their representatives might raise grievances or even refuse to attend work.
Sections 44 and 100 of the Employment Rights Act 1996 protect employees against detriment and dismissal where “in circumstances of danger which the employee reasonably believes to be serious and imminent and which he could not reasonably be expected to avert, he left or … (while the danger persisted) refused to return to his place of work“. Detriment here would include non-payment for non-attendance at work.
In law, to an unvaccinated person at least, the danger from COVID-19 is still currently classified as serious or imminent. The key question then is whether the employee’s belief is reasonable. It is less likely to be considered reasonable if the employer has fulfilled its obligation under government guidance to reduce workplace risk to the “lowest reasonable practicable level”. However, the challenge may come from employees who take the view that allowing contacts of positive cases to attend the workplace, albeit after a negative daily lateral flow test, does not meet this obligation.
Some employers will choose not to permit employees who are placed in the second group to attend the workplace, even if they are unable to work from home. This could be to prevent the challenges discussed above or for business and reputational reasons. However, this can lead to another issue.
If businesses only pay Statutory Sick Pay (SSP) for self-isolation, employees or their representatives are very likely to object. This could lead to complaints of deduction from wages, breach of contract or constructive unfair dismissal as the employees could state that they were available and willing to work and not legally prevented from doing so.
This could place businesses, particularly those in hospitality and other sectors which are still operating under restrictions after long periods of little or no trading, into really challenging situations.
For advice on this and related employment issues, please contact our experienced employment lawyers.