New Criminal Obligations on UK Employers and Employees - McDermott Will & Emery

New Criminal Obligations on UK Employers and Employees

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On 24 September 2020, the Government updated its COVID-secure workplace guidance to require office workers who can work “effectively” from home to do so over the winter. Where an employer, in consultation with its employee, judges that an employee can carry out her normal duties from home, she should do so. Those who cannot work effectively from home may go to their place of work.

The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 then came into force on 28 September 2020. These Regulations only apply to England, and the obligations on employers are intended to underpin the new obligation on individuals to self-isolate when notified to do so. The Regulations have, however, been criticised for adding an additional burden to employers that are already struggling to manage the challenges of the COVID-19 pandemic.

What’s more, potential criminal liability attaches to any employer failure to comply with the Regulations.

In Depth

What do the Regulations say?

Imposition of a Legal Obligation on Individuals to Self-Isolate

  • The Regulations make it a criminal offence for an individual not to self-isolate when he should.
  • Self-isolation is required when an individual:

    Has been told by an authorised person (such as a doctor or an NHS or local authority employee) that she has tested positive for COVID-19 (isolation period of 10 days)

    Has been notified by NHS Test and Trace that she has been in close contact with someone who has tested positive for COVID-19 (isolation period of 14 days).

Obligation on Workers to Notify Employer

  • Workers who are subject to the obligation to self-isolate imposed by the Regulations, or as a result of the travel quarantine rules, are legally obliged to tell their employer of the requirement to self-isolate as soon as practicable and, in any case, before they are next due to start work.
  • If an agency worker must self-isolate, he must inform his employer (if there is one), the agency or the client where he is working.
  • There is a £50 fixed penalty for failing to do so.
  • This notification obligation applies where a self-isolating worker is due to work (or perform the activities related to her employment) at a location other than the place where she is required to self-isolate.
  • This means that if a worker is already working from home, the obligation does not arise.

Obligations on Employers

  • Once an employer knows that a worker should be self-isolating, it must not knowingly allow the worker to attend any place of work “for any purpose related to the worker’s employment”. This does not apply to those workers who are working from home; they may continue to work from home while self-isolating.
  • It would clearly be a breach of the Regulations for an employer to instruct a worker who should be self-isolating to go into work (regardless of whether the worker has symptoms).
  • Less blatant breaches could also give rise to liability. For example, even if a worker asks to go into the workplace during his isolation period, the employer should not allow him to do so. The Regulations make an employer allowing its employee to enter his place of work a criminal act.
  • Drinks with work colleagues, or other events which are loosely related to work, could fall within the scope of “for any purpose related to the worker’s employment”.
  • An employer who receives notice from an agency worker must “as soon as reasonably practicable” supply the information contained in the notification to the other parties in the agency supply chain.
  • It’s important to note that this obligation:

    Applies to employees, workers and agency workers

    Does not apply in relation to the other instances in which self-isolation is recommended but not required, such as if a worker has symptoms or lives in a household with someone who has symptoms. However, steps should be taken to prevent workers coming into work in that situation, and there is potential liability if an employer fails to do so, although not criminal liability.

What will a breach of the Regulations mean for employers?

  • It is a criminal offence to fail to comply with the obligations set out above “without reasonable excuse.”
  • In the event of a breach, the employer will be issued a fixed penalty notice for a fixed fine of £1,000 for the first breach, increasing to £10,000 for a fourth breach. If the fine is paid within 28 days, no prosecution will be brought.
  • If the fine is not paid, the employer will be prosecuted.
  • Company directors, company secretaries and managers can be personally liable for any of the above offences if committed with their consent or connivance (which requires deliberate intent), or if the offences were the result of neglect.
  • “Managers” could capture a large number of people, even in relatively junior management positions.

What should employers do?

  • These new obligations attract criminal sanctions. That means that employers, and their directors and senior managers, would be well-advised to ensure that they have taken steps to minimise the risk of breach.
  • The key will be to issue general written communications to workers making it clear that:

    They must notify the employer (or agency, where relevant) if they are required to self-isolate as soon as reasonably practicable and not later than when they are next due to start work.

    Undertaking any work-related activity, including social activity, away from their designated place of isolation (typically their home) for the duration of their mandatory self-isolation is forbidden. Disciplinary action will result, and it is potentially a matter of gross misconduct.

  • The communication could extend beyond mandatory self-isolation to also cover periods of recommended isolation, including when symptoms are experienced but before a test result is received.
  • Employers should ensure that line managers understand the employer’s obligations and expectations.
  • If a worker does inform the employer that she is self-isolating, the employer should reinforce the stay-at-home message on an individual basis.
  • For many workers who cannot work from home, the requirement to self-isolate may have financial repercussions and cause concern about job security. Therefore, an employer may also wish to pre-empt such concerns and give whatever reassurance it can.