Staff either refusing to self-isolate or insisting on it can cause different sorts of problems for operators. David Jepps looks at the legalities.
Employees must self-isolate if told to do so by NHS Test and Trace. Period. It is the law. Exemptions are being granted for critical workers, but there is no special flexibility for hospitality employers. However, it is a very different situation with the NHS Covid app. If employees are pinged it is only 'advisory' that they self-isolate – there is no strict legal requirement for them to do so.
Although the government strongly urges that self-isolation be observed, employees can choose to ignore the app or even uninstall it. As such, it is highly likely that many have already taken an ‘out of sight, out of mind' approach.
Many hospitality employers are desperate to avoid staff shortages and the resulting detrimental impact on operations and the delivery of reliable customer service. If an employee who has been pinged attends work, a head-on collision between organisational needs and health and safety obligations ensues.
There may be a risk of infection (and possibly employer liability) to colleagues and customers alike. Being pinged might well be a false alarm, but if it isn't, problems could spiral for the business.
Being pinged might well be a false alarm, but if it isn't, problems could spiral for the business.
A Covid-19 outbreak in the workplace would inevitably lead to legal obligations to self-isolate and potentially negative publicity, too. These are big risks for hospitality employers to balance and no doubt some will prefer the app to remain in place to avoid possible longer-term liability. However, many employers will tell their staff to turn off or uninstall the app to avoid being pinged in the first place. This scenario brings with it exposure to various employment law claims, should employees object.
Irrespective of data protection issues, insisting on using or not using the app could risk constructive dismissal claims. The employee could leave, saying that in being compelled to follow what otherwise would be a voluntary course of action, the employer's actions breached the essential trust necessary for the employment contract to continue, meaning that employees could treat themselves as dismissed.
Dismissing employees for using or not using the app would be considered unfair unless the employer could prove both a fair reason for dismissing said employee and that it was reasonable to dismiss. It is somewhat difficult to see any justification given the current self-isolation rules are due to be relaxed on 16 August for those fully vaccinated.
Unfair dismissal and discrimination
Businesses in the hospitality sector frequently deal with high staff turnover, which means that most employees do not reach the two years' employment needed to make unfair dismissal claims. Unfair dismissal compensation is mainly measured by lost earnings, so if new employment is achieved quickly, there is often no significant financial loss. These are all factors that serve to reduce the risk of claims being brought at all.
That being said, businesses should pay particular attention to employees who are vulnerable, perhaps because of their health or age. Disability or age discrimination claims do not require a minimum period of service and compensation is unlimited. Such employees may react strongly to banning the app, feeling that they are more at risk in the absence of the ‘early warning' the app might offer.
To manage the risks of infection, employers could ask staff to do daily lateral flow testing, or vulnerable staff could remain on furlough while the scheme is still in place. However, until the rules change for self-isolation, employers are in a difficult position.
Employers must proceed carefully and weigh up the risks if insisting on rules regarding use of the app. However, there is some light at the end of the tunnel: changes are looming on 16 August and recent tweaks to the app to reduce pings will be welcomed by hospitality employers. And with Covid-19 infection rates now falling, there is cause for hope.
David Jepps is a partner in employment law at Keystone Law
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