On 28 September 2020 the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (“the Regulations”) came into force.
Employees required to self-isolate
The Regulations introduce a legal duty to self-isolate, breach of which is a criminal offence. They also introduce obligations on workers to inform their employer when they are required to self-isolate and on employers not knowingly to allow them to attend for work-related purposes any place other than the place where they are required to self-isolate.
The Regulations apply not just to employees but also to workers and agency workers.
Regulation 2 establishes a legal obligation to self-isolate in broad terms where an individual have been told by an authorised person (such as a doctor or NHS or local authority employee) that they have either:
- tested positive for COVID-19 as a result of a test conducted after 28 September 2020; or
- have, after 28 September 2020, come into close contact with someone who has tested positive
Regulation 8 imposes a notification obligation on workers who are subject to the obligation to self-isolate imposed under Regulation 2 of the Regulations as well as those workers who are required to self-isolate under the applicable quarantine rules of the Health Protection (Coronavirus, International Travel) (England) Regulations 2020.
This notification obligation applies where a self-isolating worker is aware of the requirement to self-isolate and is due to work or perform the activities related to his or her employment at a place other than the place where they are required to self–isolate i.e. they cannot work from home.
The employer must be notified prior to the date they are due to start work. The notification should also include the start and end dates of the self-isolation period.
Under Regulation 7 where an employer is aware that a worker is required to self-isolate, the employer must not knowingly allow the worker to attend any place other than the place at which they are required to self-isolate during the period for which they are required to self-isolate. An employer is not in breach of this obligation where the worker attends any place in accordance with their isolation requirements i.e. at home.
"Without reasonable excuse"
It is an offence to contravene the obligations of Regulations 7 and 8 “without reasonable excuse.” Both a worker failing to notify his or her employer as required under Regulation 8 and an employer which allows the worker to breach their self-isolation obligation in connection with their work will be committing a criminal offence unless a reasonable excuse can be established.
Criminal liability can attach not just to the corporate entity which is the individual’s employer but also to its officers if the offence is proved to have been committed with the consent or connivance of, or is attributable to the neglect of an officer, of the corporate entity in question. For these purposes, an “officer” is defined more broadly than just company law directors and encompasses any “director, manager, secretary or similar officer.”
Fixed penalty fine
The fixed penalty fine which can be issued to a person committing an offence under Regulation 7, the first fixed penalty notice will be £1,000. It will then go up to £2,000 for the second offence, to £4,000 for the third and to £10,000 for the fourth.