Test and Trace

The government is in the process of rolling out a new scheme designed to identify those who have been in contact with an infected person and having them self-isolate for 14 days. This means that healthy employees may be instructed to stay away from work for two weeks.

Absence as a result of this instruction will count as a period of incapacity for work for the purposes of Statutory Sick Pay. However there is nothing to stop them from continuing to work if that can be done from home. If the employee really does need to come to the workplace to work then the employer will simply have to treat the two weeks of isolation as a period of sickness absence. As well as SSP of £95.85 the employee will also be entitled to any contractual sick pay that is payable.

An employer’s absence management procedures are generally designed to encourage employees to attend work and penalise those who do not – or at least encourage them to improve their attendance. An employee who has been instructed to isolate as part of the test and trace regime however is not in a position to make a choice about whether he or she is able to attend work. Indeed it is very important that they do not come to work. A reasonable employer will therefore want to make allowances for any period of forced isolation when making an assessment of the employee’s overall attendance. Absence on these grounds should not be relied upon to trigger warnings or other measures such as exclusion from bonus schemes that may otherwise be provided for in the absence management procedure. Dismissing an employee who has been instructed to self-isolate under this system would almost certainly be held to be unfair.

Indeed it is possible that any action taken against an employee in these circumstances would trigger the health and safety rights discussed above. An employee who takes steps to protect others from danger is protected in the same way as an employee seeking to protect themselves. It is certainly arguable that an employee who stays away from work because they have been instructed to self-isolate under the Government’s test and trace scheme or because they believe that they may be infected with coronavirus could argue that their absence falls into this category.