Covid-19: removal of duty to self-isolate FAQs

The Prime Minister has confirmed that the legal duty to self-isolate for Covid-19 reasons will end on 24 February 2022. This note summarises the change and answers some of the most common questions that employers may have: 

Will there be any legal obligation on someone with Covid-19 to self-isolate? 

No, the Prime Minister has confirmed that, from 24 February 2022, all the remaining Covid-19 legal restrictions will end in England so that there is a move “from government restrictions, to personal responsibility”.

The government intends to repeal the regulations which previously made it a legal requirement for someone to self-isolate when they either: (a) themselves tested positive for Covid-19; or (b) had been in close contact with a Covid-19 case and they were not otherwise exempt (e.g. double vaccinated, or under 18). 

Whilst self-isolating will no longer be a legal obligation, until 1 April 2022, guidance will recommend that individuals who have themselves tested positive for Covid-19 should voluntarily self-isolate and only return to work after testing negative. After that date, symptomatic individuals will merely be asked to exercise caution.

From 24 March 2022, the government will also remove the legislation which allows workers with Covid-19 to claim statutory sick pay from the first day they are not at work.  

Worked examples:

• Ellie is a 19-year-old engineering apprentice. She attends a party over the weekend and, in the days that follow, begins to feel ill. A lateral flow test confirms that Ellie is Covid-19 positive. Guidance recommends that Ellie should voluntarily self-isolate until after she has tested negative.
• Bob works in a manufacturing plant. Bob lives with his partner Sarah. On 26 February 2022, Sarah tests positive for Covid-19. Although Bob is one of Sarah’s close contacts, he does not need to self-isolate. If he tests positive for Covid-19, the guidance recommends that he should voluntarily self-isolate until he tests negative.

Can an employee who is positive with Covid-19 attend work? 

Yes. As an employee who has tested positive with Covid-19 will no longer be legally obligated to self-isolate, their decision to do so is entirely voluntary. They can choose not to self-isolate, and present themselves ready, willing and able to work. If an employee is ready, willing and able to perform work in accordance with the contract, the employer has an obligation to pay wages, unless there is a contractual right not to do so (Miles -v- Wakefield Metropolitan District Council [1987] UKHL 15). Therefore, if an employer wishes to prevent a Covid-19 positive employee from attending work, it must clearly communicate workplace rules which prevent employees from attending work after a positive Covid-19 test (also see the next question).

Worked examples:

• Ellie is a 19-year-old engineering apprentice. She attends a party over the weekend and, in the days that follow, begins to feel ill. A lateral flow test confirms that Ellie is Covid-19 positive. Guidance recommends that Ellie should voluntarily self-isolate. However, by the time Ellie is next due at work she no longer feels unwell, so she turns up at work as normal.  Her employer has not notified its employees that they should not attend work with Covid-19, so Ellie is entitled to be paid in full for her shift. 
• Bob works in a manufacturing plant. His employer has given its staff a written instruction not to attend work if they test positive with Covid-19 and promised them full pay for any time spent self-isolating. Bob contracts Covid-19 from his partner Sarah. He contacts his line manager who confirms that Bob must remain at home until he tests negative and that he will suffer no loss of pay.

Can we insist that an employee who is positive with Covid-19 must not attend work? 

There are very good health and safety reasons why an employer may not want employees who have Covid-19 to attend work. An employer has a legal duty to take steps to protect the health and safety of its staff and others. Attending work whilst Covid-19 positive may cause a widespread outbreak amongst the workforce. Colleagues may also be very reluctant to work alongside someone who has known Covid-19, especially if they are symptomatic. Depending on the nature of the employee’s role, they may also encounter extremely vulnerable individuals (e.g. customers, service users) and place them at greater risk of contracting Covid-19.

Provided the employer has first clearly communicated workplace rules, it ought to be possible to prevent employees from attending work whilst they have Covid-19. However, in practical terms, compliance with such a rule amongst the workforce is likely to be heavily influenced by: 

• whether an employee can work from home or not:
  - if the role can be performed from home, the employer can ask the employee to work from home (thus minimising the risk to their colleagues) provided they feel well enough to work; or
  - if the role must be performed in a workplace, the employer will instead need to consider how to compensate the employee for the time they are being asked not to attend work.
• how much the employee will be paid during voluntary self-isolation:
  - being asked to voluntarily self-isolate on full sick pay is likely to greatly increase compliance because the employee will suffer no financial loss; or
  - whereas being asked to voluntarily self-isolate on statutory sick pay may encourage employees fearful of the loss of pay to: (a) refuse to perform a test so as to avoid confirming that they are Covid-19 positive; or (b) refuse to notify their employer that they have tested positive for Covid-19, so they can carry on working.

When considering these issues, employers ought to consider their individual workforces and how likely they are to already be concerned by the cost of living crisis and therefore unable to bear even a temporary loss of pay. 

Worked examples:

• Ellie is a 19-year-old engineering apprentice. She attends a party over the weekend and, in the days that follow, begins to feel ill. A lateral flow test confirms that Ellie is Covid-19 positive. Her employer has notified its employees that they should not attend work with Covid-19 but has said that they will only receive statutory sick pay for any time spent in self-isolation. Ellie is very worried that she will be unable to pay her rent if she suffers a loss of pay, so she decides not to tell her employer about the positive test and attends work as normal. Ellie chooses to ignore the guidance that recommends she should voluntarily self-isolate until she tests negative. Unless the employer can ‘prove’ Ellie is Covid-19 positive, it is unable to enforce its stay at home message.
• Bob works in a manufacturing plant. His employer has given its staff a written instruction not to attend work if they test positive with Covid-19 and promised them full pay for any time spent self-isolating. Bob contracts Covid-19 from his partner Sarah. He contacts his line manager who confirms that he must remain at home until he tests negative and that he will suffer no loss of pay. As he will suffer no financial loss, Bob is happy to comply with his employer’s rule.
• Jane works in accounts and since 2021 has worked on a hybrid basis, splitting her working week between home and the workplace. After an outbreak at her son’s school, Jane tests positive for Covid-19.  As Jane recently had her booster, she does not really feel unwell at all. She speaks to her line manager who tells her to work from home on full pay doing as much or as little work as she feels able to. Jane is happy to do so as it means she can also keep an eye on her son who has to remain off school because he is Covid-19 positive.
• Dave works as a cleaner on a zero-hours contract. He develops cold-like symptoms. His wife suggests that he take a Covid-19 test. However, Dave refuses to perform the test because he knows that his employer’s rule is that staff must not attend work with Covid-19 and he is worried that he will be unable to buy food this month if he loses pay during any period of self-isolation. Unless testing is a contractual requirement, the employer will not be able to ‘require’ Dave performs a Covid-19 test.

Can we insist that an employee who is positive with Covid-19 must work?

The answer to this will likely depend on the circumstances, including whether the employee can perform their role from home, and how unwell they feel. The starting point is to note that an employee who is positive for Covid-19 is deemed to be ‘incapacitated’ even if they do not feel unwell. Therefore, they are entitled to sign themselves off sick and will be entitled to whatever sick pay their contract provides for (whether that is contractual or statutory sick pay).

Further, as we outlined above, there are very good reasons why it is likely to be a bad idea to ask an employee who is Covid-19 positive to attend the workplace. However, if the employee can perform their work from home, and feels well enough to do so, there is no reason in principle why they should not work from home until they test negative.

In relation to an employee who is Covid-19 positive, it is also important to note that health and safety legislation offers protection from detriment and dismissal in several circumstances. For example, where in circumstances of danger, which the employee reasonably believes to be serious and imminent, the employee takes (or proposes to take) appropriate steps to protect themself or other persons from the danger (e.g. if they refuse to attend the workplace whilst they have Covid-19 because it places them at risk of spreading it). For example, a Scottish Employment Tribunal recently held that an employer’s decision to treat an employee’s absence as unauthorised (and deduct a day’s pay), amounted to detrimental treatment on unlawful health and safety grounds in circumstances where he had refused to attend work because he feared he had contracted Covid-19 from his wife who worked on a hospital ward where there had been a Covid-19 outbreak (see p9 of January’s HRizon newsletter).

Colleagues may also be very reluctant to work alongside someone who has known Covid-19, because it places them at increased risk of contracting Covid-19. The employer has a duty to provide them with a safe working environment. If an employee raises concerns about working alongside a colleague with Covid-19, they may also benefit from certain legal protections against detriment and dismissal. For example, where any detriment or dismissal is motivated by the fact that:

• they have made a protected disclosure (whistleblowing) concerning health and safety concerns (e.g. that they should not be forced to work alongside someone who is Covid-19 positive);
• they have brought to their employer’s attention, by reasonable means, circumstances connected with their work which they reasonably believe are harmful or potentially harmful to health or safety (e.g. that working alongside someone with Covid-19 significantly increases their risk of contracting Covid-19); or
• in circumstances of danger which they reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, they left (or proposed to leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of the place of work (e.g. if they refuse to return to work until the employee who is Covid-19 positive is sent home).

For example, Sheffield Employment Tribunal recently held that a medical secretary had been automatically unfairly dismissed for health and safety reasons after she raised concerns about the employer’s decision to allow three students to shadow her team’s work in a relatively small office where it would be difficult to social distance (see p8 of January’s HRizon newsletter). 

Further, the fact that the legal obligation to self-isolate has been replaced by purely advisory guidance, is unlikely to provide the employer with a defence to any claim that there are health and safety risks. East London Employment Tribunal recently dismissed a similar argument when it held that a shop worker had been automatically unfairly dismissed after raising health and safety concerns. The tribunal quickly dismissed the employer’s attempt to rely on the fact its Covid-secure measures went beyond those strictly required by law. The employee had not sought to rely on whistleblowing disclosures related to the employer’s breach of ‘any legal obligation’, but rather on whistleblowing disclosures which tended to show that the health and safety of any individual had been, was being, or was likely to be endangered. It did not matter if health and safety law had actually been broken, the employee only had to show that she had reasonably believed that there was a health and safety danger.

Worked examples:

• Jane works in accounts and since 2021 has worked on a hybrid basis, splitting her working week between home and the workplace. After an outbreak at her son’s school, Jane tests positive for Covid-19. She speaks to her line manager who tells her to work from home for a week. Jane refuses to do so and signs herself off sick instead. Legislation currently deems Jane as being ‘incapacitated’ by Covid-19 and she is entitled to do so.
• Bob, who works in a manufacturing plant, tests Covid-19 positive. His line manager says that as there is no longer any legal obligation for him to self-isolate, he must attend work as normal. Bob tells his manager that he is not willing to return to work because he believes his positive test means attending work would place his colleagues in serious and imminent danger. Bob is protected from detriment/dismissal related to his refusal.
• Nicola, who has asthma, works as a receptionist. Nicola’s colleague who she works side-by-side with, Lisa, tests positive for Covid-19. As there is no legal requirement to self-isolate, Lisa attends work as usual. Nicola is furious and tells her line manager that she should not be forced to work alongside Lisa because doing so will significantly increase her risk of contracting Covid-19 and she is especially vulnerable given her asthma. Nicola is protected from detriment/dismissal motivated by her raising these health and safety concerns.

The information and any commentary contained in this note are for general purposes only and do not constitute legal or any other type of professional advice. We do not accept and, to the extent permitted by law, exclude liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this note. Whilst every effort has been made when producing this note, no liability is accepted for any error or omission. If you have a particular query or issue, we would strongly advise you to contact a member of the team, who will be happy to provide specific advice, rather than relying on the information or comments in this note.