This article was co-authored by Maeve Morrissey, Trainee Solicitor, London.
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, SI 2020/1045 (the Self-Isolation Regulations) were implemented on 28 September 2020. They impose a mandatory ‘self-isolation’ period for those who test positive for COVID-19 and those who have had “close contact” with someone who tests positive for COVID-19. This period of self-isolation means that people should not leave their home or “other suitable place” for a set period of up to 14 days.
The Self-Isolation Regulations not only impose rules on individuals. Employers should also be aware of these regulations and the obligations they impose, with associated criminal sanctions for breaches.
What do the Self- Isolation Regulations say?
Part 1 of the Self-Isolation Regulations imposes an obligation on individuals to self-isolate in certain circumstances. It outlines how long the period of self-isolation should be and states the circumstances in which an individual can leave their home. Individuals are required to self-isolate if they are notified by the Secretary of State, the NHS or a local authority other than ‘by means of the NHS COVID-19 smartphone app’.
Part 2 of the Self-Isolation Regulations imposes obligations in relation to workers. Under Regulations 8 and 9 there is a requirement on self-isolating workers (including agency workers) to notify their employer of their obligation to self-isolate and the start and end dates of their isolation period as soon as reasonably practicable and in any event before the worker is next due to start work within the isolation period.
A substantial new duty has also been introduced on employers by the Self-Isolation Regulations. Regulation 7 states that where an employer is aware of the requirement of a worker to self-isolate, “the employer must not knowingly allow the worker or self-isolating agency worker to attend any place other than their designated place, during an isolation period, for any purpose related to the worker’s or self-isolating agency worker’s employment.” In effect, this means employers now have a responsibility for stopping workers from leaving their home in order to go to work.
Sanctions for breaching the Self-Isolation Regulations
Part 3 of the Regulations outlines the consequences of a breach of an obligation in the Self- Isolation Regulations. A person (including a corporate body) who contravenes a requirement in the regulations without reasonable excuse commits an offence.
Furthermore, if a corporate body is proved to have committed an offence with the consent, connivance or attributable to the neglect of an ‘officer of the body’, that officer is also guilty and liable to be prosecuted and punished in an individual capacity. Any prosecutions will be brought by the local authority and/or the Crown Prosecution Service.
Offences are punishable on summary conviction by a fine.
Regulation 12(1) of the Self-Isolation Regulations outlines that anyone that an authorised enforcer ‘reasonably believes’ has committed an offence under the Self-Isolation Regulations may also be issued with a fixed penalty notice. The starting point fixed penalty notice is £1,000 for breach of Regulation 7 and Regulation 9(4) and 9(6) but it dramatically increases for each penalty notice issued. The fixed penalty notice climbs to £10,000 for repeated breaches (Reg12(6)).
What should employers do?
Employers should make clear to their employees/agencies/agency workers the procedures which they are required to follow for reporting sickness and COVID-19 positive test results. Good practice would be to ensure that employees are made aware of the rules for self-isolation and that they are obliged to follow those rules by their employer.