On 28 September 2020 new regulations came into force with no advance warning, not only making self-isolation a legal requirement and introducing penalties for individuals, but also introducing offences and penalties for employers in England.
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 ("Self-isolating Regulations") key provisions:
- Require people who have been notified that they have tested positive for COVID-19 and their close contacts to self-isolate for designated periods and to provide information to contact tracers about where they will be staying for their period of self-isolation.
- Prohibit employers or agencies from allowing workers who are required to self-isolate to work in any place except the place where they are self-isolating.
- Require workers and agency workers to notify their employers of their requirement to self-isolate.
- Create criminal offences and the penalties that apply for breaches of the provisions. In the case of an offence by an employer, fines begin at £1,000, rising up to £10,000 in relation to subsequent offences.
Employers and staff need to understand their legal obligations under the new regulations or risk significant financial penalty. Employers should refresh messaging and policies. It should be made clear to workers that they are required to notify their employer or agency if they are required to self-isolate as soon as reasonably practicable and not later than when they are next due to start work and that failure to do so may be a disciplinary matter. Employers should ensure that all line managers, as the people most likely to receive the notification calls, are fully briefed. If a worker who is required to self-isolate is unable to work from "the designated place of isolation" (in most cases their home), the employer must not allow them to attend their usual workplace or work from anywhere else.
The requirement to self-isolate
The requirement on an adult to self-isolate is triggered when that adult is notified by NHS staff, local authority staff or the Secretary of State (otherwise than through the NHS COVID-19 smartphone app) that they have:
- tested positive for coronavirus at some point after 28th September 2020, or
- had close contact after 28th September 2020 with someone who has tested positive for coronavirus.
Self-isolation means that they must remain (subject to specified exceptions such as seeking urgent medical assistance) in:
- their home;
- the home of a friend or family member; or
- accommodation arranged under the Immigration or Asylum Act 1999 or other suitable place.
The required periods of self-isolation are:
- For someone who has tested positive: until 10 days after the date on which their symptoms began, if that is known and has been reported, otherwise 10 days after the date of their test.
- For people who are notified that they are a close contact of another household member who has tested positive: until 14 days after the date that the other household member's symptoms began, if that is known and reported, or otherwise until 14 days after the date of that person's test.
- For people who are notified that they are a close contact of someone outside their household who has tested positive: until 14 days after the date that they were last recorded as in contact with that person.
The new criminal offences for individuals
Any adult contravening the self-isolating requirements without reasonable excuse will commit a criminal offence and incur a penalty.
Other offences created include:
- obstructing someone carrying out an enforcement function;
- contravening a direction given without reasonable excuse; and
- knowingly providing false information about their self-isolating address or knowingly falsely stating that someone is a close contact of someone who has tested positive.
Note: Corporate bodies can commit the same offences where an officer of that body can be shown to have acted with consent, connivance or negligence.
Anyone who fails to self-isolate without reasonable excuse may receive a fixed penalty of £1,000 for a first offence, £2,000 for a second, £4,000 for a third and £10,000 for each subsequent offence.
Where the individual unreasonably fails to self-isolate and is being reckless as to the consequences for another person or group, the first fixed penalty will be £4,000 and the amount of each subsequent penalty will be £10,000.
The employment related offences
The employment-related offences are triggered not only when an individual is required to self-isolate under regulation 2 of the Self-isolating Regulations, but also if required to self-isolate under regulation 4 of the International Travel Regulations which impose quarantine restrictions for people arriving in England. As those are regularly updated, employers and staff need to be keeping up to date with the restrictions at any given time.
The employer's obligation
Under regulation 7, the employer of a worker or agency worker who is required to self-isolate should not knowingly allow them to work other than at the designated place of isolation, during the period of isolation.
So if an employer knows a worker has tested positive, or lives with someone who has tested positive, or is required to self-isolate after international travel, it is now responsible for stopping the worker from working unless they can work from "the designated place of isolation", in most cases their home.
The worker's obligations
Self-isolating workers (including agency workers) who are due to work (other than at the designated place of isolation) or to undertake any work-related activities, must notify their employer (or the employment business or client in the case of an agency worker) that they are required to self-isolate, as soon as reasonably practicable and not later than when the worker is next due to start work in the isolation period. They must include in their notification the start and end dates of the isolation period.
There is no legal requirement that the worker informs the employer of their "designated place of isolation", though it would be prudent for the employer to ask for confirmation of the designated place to ensure they are able to comply with the employer's obligations.
In the case of agency workers, the recipient of the notification must inform others in the agency chain.
For offences arising from requirements on employers (regulation 7), the penalty is £1,000 for a first offence £2,000 for a second, £4,000 for a third and £10,000 for each subsequent offence.
Where the offence arises from breaching duties on those receiving such information from agency workers to pass it on, the fixed penalty is £1,000. This level of fixed penalty also applies where the fixed penalty notice is issued to an officer personally (a director, manager, secretary or other similar officer) of a body corporate that (i) has consented to or connived in that contravention by the body corporate, or (ii) where that contravention by that body corporate is attributable to neglect on the part that officer.
For offences arising from the worker's duty to inform their employer or agent that they have been notified to self-isolate, the amount of the fixed penalty is significantly lower, £50.
Extent of the self-isolating regulations
The Self-isolating Regulations apply in relation to England only. They will be reviewed at the end of six months and will expire after 12 months (from 28 September 2020).