Fines for employers who knowingly allow a self-isolating worker to attend the workplace

A new criminal offence came into effect in England from midnight on 28 September 2020 where employers can be issued with a fixed penalty notice of between £1,000 and £10,000 or face prosecution, if they knowingly allow a self-isolating worker to attend the workplace.

The law

Regulation 7 of the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 sets out the position in relation to employers which can be summarised in three parts:

1. The worker has been required to self-isolate
The requirement to self-isolate applies to an adult who is notified by a Local Authority or Public Health Officer after 28 September 2020 that either: they have tested positive for coronavirus or have had close contact with someone who has, or, a child in respect of whom they are a responsible adult has tested positive for coronavirus or has been in close contact with someone who has. The worker may also have been required to self-isolate under the new international travel regulations, (i.e. they are in quarantine).

2. Once the employer is aware that the worker is required to self-isolate, they must not knowingly allow the worker to attend any place other than the “designated place” during an isolation period
The “designated place” means the place at which the worker is self-isolating, which will usually be their home. Therefore, if the worker can work from home having been required to self-isolate, then they can do so provided that they are well enough, for example because they feel fine and are only self-isolating because they have had close contact with someone who has tested positive for coronavirus.

The employer is most likely to become aware of the requirement on the worker to self-isolate because the worker is under a duty to inform them. Under regulation 8, where the worker is aware of the requirement on them to self-isolate and is due to work or due to undertake any other activities relating to their employment during the isolation period other than at the designated place, they must notify their employer of the requirement to self-isolate and the start and end dates of the isolation period. Notification must be as soon as reasonably practicable, and in any event, before the worker is next due to start work within the isolation period. A worker in breach of their requirements under regulation 8 can be issued with a fixed penalty notice of between £1,000 and £10,000 or face criminal prosecution.

Once an employer has received notification from a worker that they have to self-isolate then they must not allow them to attend the workplace. There is no discretion here. Issues may arise where the worker does not inform their employer that they have been required to self-isolate, for example because they cannot work from home and would only be entitled to statutory sick pay whilst isolating. In this case, the employer would not be knowingly allowing the worker to attend the workplace and would therefore be able to raise a defence to any allegation that they have breached the regulations.

3. The worker must not attend the workplace for any purpose related to the worker’s employment
This is a clear message, and it means for example that the worker cannot come in to collect things to enable them to work from home. You could instead arrange for safe and secure delivery of the items to them.

What should employers do to keep on the right side of the law?

We recommend that you notify all workers in writing that they must inform you if they are required to self-isolate and provide the details of the start and end dates of their self-isolation period. This would include workers currently on furlough because you may need them to return to the workplace although you will need to think about how you contact them if they are not meant to be working. You should keep records of any correspondence that you have sent and of any notifications provided by workers.

You should also make it clear that a failure to notify you could result in disciplinary proceedings. A worker who ignores the requirement to self-isolate and attends the workplace puts the health and safety of their colleagues, and potentially the wider public at risk and any subsequent positive coronavirus tests could have a serious detrimental impact on your business. We can support and advise you should any issues arise in relation to this.