Covid-19: Test and Trace – Employee Pay For Those Self-Isolating

Statutory Sick Pay (SSP) can be paid to people who have been told to self isolate under the new NHS ‘Test and Trace’ system which launched in England today (28 May 2020).

The government has updated The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 4) Regulations 2020, presumably to encourage workers to comply with ‘Test and Trace’ system by off-setting some of the financial hardship self isolating will cause to workers who are unable to work from home.

This means that anybody who has been notified that they have had contact with a person with coronavirus, and cannot go out to work because they should be self isolating for 14 days, will be entitled to be paid SSP at £95.85 per week.

Agency workers and those on zero hours will also qualify for SSP in many, if not most, circumstances.  Some employees may be entitled to enhanced contractual sick pay depending on the terms of their employment contract.

On 27 May 2020 the government published Test and Trace work place guidance for both employers and workers click here.

In the guidance for businesses the government encourages employers to play their part in helping ‘manage the risk of the virus re-emerging’ by:

• making their workplaces as safe as possible;
• encouraging workers to heed any notifications to self-isolate and supporting them when in isolation;
• allowing people to work from home if they remain unwell and it is practicable to do so;
• trying to find alternative work that can be completed at home during the period of some self isolation for people who can’t normally work from home;
• ensuring workers advised to self isolate are paid SSP;
• allowing workers to self isolate on annual leave at full pay rather than SSP rates.

Using annual leave instead of SPP 
It will be welcome news to employees that they can use their annual leave entitlement whilst self isolating; previously they only had to the right to request this. However they may not have enough annual leave left if they have already used it to top up capped furlough pay, or because their employer has asked them to use during lockdown before anticipated surge in business later this year.

Also employers may not have the cash flow to pay full annual leave to staff self isolating. If this is the genuinely the case our view is that they will not have to follow this government guidance but employers should be ready to demonstrate their lack of funds in case employees bring constructive dismissal claims for breach of trust and confidence claims against them.

Employers should also familiarise themselves with the government’s Coronavirus SSP Rebate Scheme to claim back their employee’s coronavirus related SSP. https://www.gov.uk/guidance/claim-back-statutory-sick-pay-paid-to-your-employees-due-to-coronavirus-covid-19

Encouraging workers to heed any notifications to self-isolate
This cajoling language is in line with the statement by Health Secretary Matt Hancock that complying with Test and Trace is a “civic duty”. In fact employers could reasonably dismiss employees who continue to come to work after being told to self isolate, thus risking the health of their colleagues and / or customers.

Conversely employers who pressure staff who should be self isolating to come to work could face automatic unfair dismissal and detriment claims from employees under S44 and S100 of the Employment Rights Act 1996.

No doubt many other employment related test and trace issues will emerge over coming weeks and months.

If you have any further queries around the above topic or otherwise, contact the firm here.