Employer Offence to Allow Breach of Self-Isolation

Employer obligations

As soon as you are aware of a workers/agency workers requirement to self-isolate, it is an offence if you “knowingly” allow that individual to attend any place other than the designated place in which they are isolating (usually their home), during the isolation period, for any purpose related to the individuals work. This means you can allow them to work from home if their job can accommodate this. Whilst workers are under an obligation to inform you of their requirement to self-isolate, if they fail to do so but you are aware of their obligation to self-isolate, the same obligations on you as their employer shall apply.

Unfortunately, there is no obligation on the worker to notify you in writing of their obligation to self-isolate which means tight procedures should be in place to record any phone calls or correspondence which may suggest someone is or will be self-isolating (e.g. where they report they feel unwell or they need to care for their child who has a temperature/new cough etc). These should be followed up to find out the outcome of the test if this information is not forthcoming by the worker.

Further, due to the wording of the new obligation on employers, you are not only restricted from preventing the worker attending their place of work but any place which is related to their work/employment. For example, they must not attend client premises, a colleague’s home to collect work related documents, the office to print documents or collect items to enable them to work from home. If you know they are doing this, and do not take action to prevent this, it is likely to amount to an offence under the new regulations. If you become aware of this, it is advisable to contact the employee immediately (following it up in writing) to remind them of their obligations when self-isolating and instruct them not to attend such places. If, for example, they need equipment taken or delivered to their house to enable them to work from home, arrangements could be agreed over the phone to enable this.

It is also unclear what will amount to “knowledge” in these circumstances. For example, will the employer be “deemed” to have knowledge where the self-isolating worker informs a junior member of staff that they may breach the rules, and this message is not passed onto a more senior manager. It certainly seems likely that more senior managers can be personally responsible for breaches and this may well render the employer liable as well. It is worth noting that you will not be committing an offence if you knowingly allow an individual to attend a place in accordance with the isolation exceptions. The regulations allow self-isolating individuals to attend the following places (although some of these seem contrary to Government advice on gov.uk):

1. to seek medical assistance, where this is required urgently or on the advice of a registered medical practitioner, including access to dentists, opticians, audiologists, chiropodists, chiropractors, osteopaths and other medical or health practitioners or services relating to mental health); or
2. to access veterinary services, where this is required urgently or on the advice of a veterinary surgeon
3. to fulfil a legal obligation, including attending court or satisfying bail conditions, or participating in legal proceedings
4. to avoid a risk of harm
5. to attend a funeral of a close family member
6. to obtain basic necessities, such as food and medical supplies for those in the same household (including any pets or animals in the household) where it is not possible to obtain these provisions in any other manner
7. to access critical public services, including social services, and services provided to victims (such as victims of crime)
8. to move to a different place where it becomes impracticable to remain at the address at which they are.

Criminal Offences

Individual workers and agency workers who fail to notify their employers or fail to self-isolate can be subject to a fixed penalty notice, or an offence resulting in a fine. In addition, employers who breach their requirements can also face a fixed penalty notice (from £1,000 to £10,0000) and these can be issued to individual directors, managers, the secretary or other similar officers. Alternatively, a prosecution for a criminal offence resulting in a fine could take place.

Steps to take

It would be sensible to communicate to your staff, in writing, their obligation to notify you of their requirement to self-isolate and the start and end dates, as soon as they become aware themselves of this and the restrictions placed on them whilst self-isolating. It is also sensible to have a central contact to whom such notifications in writing must be made. For agency staff, you can also make them aware of this and contact their employers/agencies to ensure they are aware of their obligation to notify you of any agency worker supplied who is self-isolating at any time.\

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