Introduction

In a move again criticised, as so much recent COVID-19 related legislation has been, as government by decree, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (“the Regulations”) were made on Sunday, 27 September 2020 and came into force on Monday, 28 September 2020.

The Regulations introduce a legal duty to self-isolate, breach of which is a criminal offence. They also introduce obligations on workers to inform their employer when they are required to self-isolate and on employers not knowingly to allow them to attend for work related purposes any place other than the place where they are required to self-isolate.

Breach of this latter obligation without reasonable excuse renders an employer and potentially its officers liable to a fine by way of a fixed penalty notice of £1,000, rising to £10,000 for a fourth infraction.

It is important to appreciate that the obligations imposed by the Regulations apply not just to “traditional” employees but also to workers and agency workers.

Self-isolation

Regulation 2 establishes a legal obligation to self-isolate in broad terms where an individual have been told by an authorised person (such as a doctor or NHS or local authority employee) that they have either:

-       tested positive for COVID-19 as a result of a test conducted after 28 September 2020; or

-       have, after 28 September 2020, come into close contact with someone who has tested positive for COVID-19.

The Regulations prescribe not only the place at which a person who is required to self-isolate is to remain but also the limited circumstances in which they are permitted to leave the place at which they are self-isolating.

Obligation on Workers to Notify Employer

Regulation 8 imposes a notification obligation on workers who are subject to the obligation to self-isolate imposed under Regulation 2 of the Regulations as well as those workers who are required to self-isolate under the applicable quarantine rules of the Health Protection (Coronavirus, International Travel) (England) Regulations 2020 – in the latter case apparently even if their self-isolation started before 28 September 2020.

This notification obligation applies where a self-isolating worker is aware of the requirement to self-isolate and is due to work or perform the activities related to his or her employment at a place other than the place where they are required to self–isolate. In those circumstances, the worker must inform their employer of the fact that they are self-isolating, together with the start and end date of the self-isolation, as soon as practicable and in any event before the worker is next due to start work within the period for which they are required to self-isolate.

Obligation on Employer

Where an employer is aware that a worker is requirement to self-isolate, the employer must not knowingly allow the worker to attend any place other than the place at which they are required to self-isolate during the period for which they are required to self-isolate. An employer is not in breach of this obligation where the worker attends any place in accordance with their isolation requirements.

Agency Workers

Equivalent provisions apply in relation to agency workers.

Criminal Offences

It is an offence to contravene the obligations of Regulations 7 and 8 “without reasonable excuse.” Both a worker failing to notify his or her employer as required under Regulation 8 and an employer which allows the worker to breach their self-isolation obligation in connection with their work will be committing a criminal offence unless a reasonable excuse can be established.

Importantly, in relation to corporate employers, criminal liability can attach not just to the corporate entity which is the individual’s employer but also to its officers if the offence is proved to have been committed with the consent or connivance of, or is attributable to the neglect of an officer, of the corporate entity in question. For these purposes, an “officer” is defined more broadly than just company law directors and encompasses any “director, manager, secretary or similar officer.”

The fixed penalty fine which can be issued to a person committing an offence under Regulation 7, the first fixed penalty notice will be £1,000. It will then go up to £2,000 for the second offence, to £4,000 for the third and to £10,000 for the fourth. The fixed penalty fine for an offence under Regulation 8 is £50.

Conclusions

It may be unlikely that an employer would knowingly allow a worker who is obliged to self-isolate to perform any work related activities away from the place where they are required to self-isolate. However, the fact that these new obligations attract criminal sanctions reinforces the importance of compliance and of employers adopting effective procedures to avoid breach of their obligations. Employers need to ensure that they continue to make clear to their employees and workers their obligations and in particular the need to comply with the applicable self-isolation and notification obligations as well as the employer’s own procedures when they are told to self-isolate.