From 16 August, people who are double-jabbed are no longer legally required to self-isolate even if they are identified as being in close contact with a positive COVID-19 case. Previously, there was an ongoing debate about whether employers could compel their staff to ignore or turn off the NHS App to avoid employees being “pinged”.
However, this issue has now been flipped on its head, with the question being whether employees have the right to self-isolate even if they are not legally required to do so.
Do employees have a right to choose to self-isolate if they are not required by law to do so?
The short answer is that employees do not have a right to choose to self-isolate if they are not required to by law.
Self-isolating and therefore not attending work without the employer’s agreement would be a breach of an employee’s contract and could potentially lead to dismissal.
Can employees qualify for statutory sick pay or be furloughed?
Employees who are self-isolating voluntarily will not qualify for statutory sick pay. It is arguable that they could be furloughed whilst this is still in place – but the decision whether to furlough rests with their employer. As the furlough scheme has started to wind down and is due to finish at the end of September, this may not be an appealing option for employers.
As the employee has chosen not to attend work, there is no right to be paid – but using up holiday or taking unpaid leave can be agreed with employers.
Of course, an issue with taking any leave to self-isolate, be it unpaid or paid, is that it is a time-limited solution could not continue in the long term. It also has the potential to lead to staff shortages and other related problems.
Can employers compel their staff to attend work, regardless of the employees’ desire to self-isolate?
This scenario brings multiple problems for employers. Insisting on staff attending work has the potential to risk constructive dismissal claims: The employee could leave, saying that the employer’s actions breached essential trust, meaning that they could treat themselves as dismissed. Dismissing employees for insisting on self-isolation could be unfair unless the employer could prove both a fair reason for dismissing and that it was reasonable to dismiss.
Demonstrating reasonableness would involve considering alternatives to dismissal. As many employees have worked from home during the past year or so, self-isolating as a choice may not be something an employer always objects to if work can still be done from home. But employers can potentially assess matters on a case-by-case basis and reasonably refuse, particularly if there is a detrimental impact with remote working.
How does this work in relation to vulnerable employees?
There are risks of discrimination claims from vulnerable employees if their requests to self-isolate are refused. Employers will need to justify imposing a requirement not to allow voluntary self-isolation. They will also need to explain why it is not a reasonable adjustment to make exceptions and allow vulnerable employees to self-isolate. Under current case law a reasonable adjustment is unlikely to include paid voluntary self-isolation.
Vulnerable employees otherwise happy to be in the workplace may well have concerns about a potentially infectious member of staff attending work, which will need to be managed sympathetically. Failure to do so could lead to a feeling of anxiety or even resentment to the employer from non-vulnerable staff as well.
Can I insist on an employee self-isolating even if they are double-jabbed?
If an employee who has been in close proximity to someone who has tested positive attends work, there may be a risk of infection (and possible employer liability) to their colleagues and customers alike. In these circumstances, employers may wish to insist that such employees self-isolate as a precaution.
As the employer would be compelling the employee not to come to work when they are otherwise ready and willing, the starting point is that there would still be an obligation to pay them. It is more likely therefore that employers with such concerns would require daily lateral flow tests, the use of PPE and special social distancing measures instead.
How do the new rules apply to those who are not vaccinated?
The exemption from self-isolation generally only applies to those who are double-jabbed and those who are not fully vaccinated could still be legally required to self-isolate.
Fully vaccinated means having had the recommended dose of an approved vaccine for at least 14 days. There are, however, other exemptions from self-isolation where an individual cannot be vaccinated for medical reasons, is under 18 or is participating in an approved COVID-19 vaccine trial.
If you have any questions on the topics discuss above, please contact David Jepps.