There are criminal penalties in England for both employees and employers if the employee fails to self-isolate when required, but the regulations vary across the countries that make up the UK.
One of the biggest mistakes we make is assuming that the NHS Test and Trace system applies UK-wide. Each country actually has its own system, although the underlying aim is the same: to test those who may have symptoms of Covid-19 and, if positive, to trace contacts and advise a period of self-isolation.
However, health policy does not apply on the same UK-wide basis, so let’s have a country-by-country look.
NHS England operate the NHS Test and Trace system. The gov.uk site makes clear:
“It is a legal requirement to self-isolate if you test positive for Covid-19 or if you are identified as a contact and told to self-isolate by Test and Trace.”
The legal requirement comes in the form of The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 which came into force on 28 September 2020. They are applied in England only.
Regulation 12 details the penalties that could be imposed on individuals who fail to self-isolate where they have tested positive for Covid-19 or have been in close contact with someone that has tested positive, i.e. they have been traced. These are:
First offence £1,000
Second offence £2,000
Third offence £4,000
Fourth and subsequent offences £10,000
When an employer has been notified and lets the worker return to the workplace, they are committing an offence, punishable by the enforcement measures outlined in Regulation 10. It is then that the above fixed penalty notices become chargeable on the employer.
The 2020 regulations have made the requirements to self-isolate mandatory and have imposed penalties on both individuals and the employer – in England only.
NHS Scotland operate the Test and Protect system. As NHS inform states:
“Test and Protect is Scotland's approach to preventing the spread of coronavirus in the community.”
However, Police Scotland have the power to impose penalties under The Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020 for breaching the lockdown restrictions that are in place. These do not include the failure to self-isolate.
NHS Wales operate the ‘Test Trace Protect’ strategy. The Welsh government website says that this is:
“Our strategy for testing the general public and tracing the spread of coronavirus in Wales.”
Like Scotland, there is guidance for employees and employers and statutory guidance made under The Health Protection (Coronavirus Restrictions) (No.2) (Wales) Regulations 2020. It is these 2020 regulations that give the power to impose penalties for breaching lockdown restrictions. However, these do not include the failure to self-isolate.
The Department of Health in Northern Ireland have published their ‘Test, Trace and Protect Strategy’. This is for: “Saving lives by minimising SARSCoV2 transmission in the community in Northern Ireland.”
Like Scotland and Wales, Northern Ireland does not have specific penalties for failure to self-isolate, only penalties for breaching restrictions as they may apply. The penalty regime is outlined in The Health Protection (Coronavirus, Restrictions) (No. 2) Regulations (Northern Ireland) 2020.
The gov.uk site includes guidance for businesses and employers, and the Northern Ireland executive’s guidance also includes support measures that are available. The indirect.gov.uk site provides further guidance for workers.
The Coronavirus Act 2020 is an important piece of legislation. This is a ‘four nations Act’ applying UK-wide. However, each of the devolved nations has their own emergency Covid-19 legislation, as health is a devolved responsibility.
In England, there are regulations that make failure to self-isolate an offence and impose penalties for workers and employers who let a self-isolating worker return to the workplace.
Similar penalties do not exist in the devolved nations. At least, not at the moment; there is the possibility that Scotland, Wales and Northern Ireland will follow suit.
Clarity for employers
Like everything to do with Covid-19, this is an ever-changing and evolving picture. We are all running to keeping up with the developing coronavirus rules and processes, which is stressful and complicated for employers and individuals alike.
The majority of the public seem keen to adherence to the legislation, interpreted as guidance by the relevant authorities. However, if the regulations are changing all of the time, how can anyone hope to comply?
Employers have an important role to play here – recognising the rules and communicating them to their workers as best they can.