Pingdemic – can employers ignore the Covid app?

What is a ‘pingdemic’?

As the country starts to open up and Covid restrictions are lifted, businesses face yet another problem, the so-called ‘pingdemic’. At the current time, people who have the Covid app and come into contact with a person who has Covid are asked to self-isolate for 10 days. (The same rule applies to those without the app, but those people are only likely to be required to self-isolate because of a reported contact with someone).

The situation is due to change on 16 August 2021 when people who are fully vaccinated should no longer have to self-isolate. However, 16 August is a long way off for employers who are dealing with the increasing number of Covid cases. At present in the UK, we are averaging about 50,000 new cases a day, which would mean around 1.5 million new cases are anticipated between now and 16 August. According to the Test and Trace statistics, for every person identified as having Covid, an average of 3 people are asked to self-isolate. That’s a staggering 4.5 million people in about 1 month. Attempts by employers to get the advice changed for fully vaccinated employees has been met with resistance by the Government, with each case to be considered on a case-by-case basis.

A growing issue

It is therefore not surprising that many employers are finding that the number of staff self-isolating is already having a significant impact on their businesses, and that the situation is likely to get worse before it gets better. The request to self-isolate from the app is not legally binding, and has caused some confusion within the ranks of Parliament. Business minister Paul Scully was recently reported to have said it was ‘a decision for individuals and employers’ whether they should isolate after a “ping” from the app, but that view was rapidly rejected by Number 10, who said it was essential that people did self-isolate. So, can an employer ask its employees either to remove the app, or to ignore the request to self-isolate? In our view, it would be risky to do so.

Turn off the ping?

There are various legal consequences which could be faced by employers who either try to persuade staff to ignore the request to self-isolate or to remove or not download the app. Examples of the claims which they might be opening themselves up to include:

• An employee who has been pinged and who has been instructed to work could bring a claim that they have been subjected to a detriment, or if they resign are automatically unfairly dismissed, because they have raised a health and safety issue. Compensation for these types of claims is unlimited, and there is no requirement for the employee to have 2 years’ service with their employer.
• An employee who has to work alongside someone who has been pinged could bring similar claims.
• An employee who contracts Covid from an employee who has been pinged and who has been instructed to work, could bring a personal injury claim against their employer, as well as similar employment claims to the above.

There is of course also the moral stance to consider, and the potential of extremely adverse publicity.

What can employers do?

Depending on the employee’s job, it may be possible for them to work from home for the 10-day isolation period. If that is the case, then that will be the most straightforward option.

For those who cannot work from home, someone who is self-isolating for at least four days will qualify for Statutory Sick Pay without any ‘waiting days’. But if the employee only has to self–isolate for three days (perhaps because the person they were in contact with initially tests positive with a lateral flow test, and once they get their PCR test result back it is negative) then they would not be entitled to SSP for those days. However, in either case, depending on the employer’s sick pay rules, they may be entitled to company sick pay – it can get very complicated!

There’s also the possibility of a payment of £500 under the Test and Trace Support Payment scheme, details of which are available here.

In addition, it may be possible to place the employee on furlough for the period of self-isolation, although it is arguable that there may need to be business reasons for them being on furlough. The furlough scheme (CJRS) is not based on statutory regulations or acts of Parliament, but on Treasury directions that have been issued alongside the HMRC guidance.

The Treasury guidance contains this key paragraph:

“Integral to the purpose of CJRS is that the amounts paid to an employer pursuant to a CJRS claim are only made by way of reimbursement of the expenditure incurred or to be incurred by the employer in respect of the employee to which the claim relates whose employment activities have been adversely affected by the coronavirus and coronavirus disease or the measures taken to prevent or limit its further transmission.”

It is the last few words of that paragraph which suggest that putting someone who otherwise qualifies on furlough while they are self-isolating, is acceptable as the self-isolation is a “measure taken to prevent or limit its further transmission”. However, the position is not as clear as it could be, and if you are an employer with questions on this subject, you should contact us for further advice.