COVID 19 – New Criminal Offences for Employers and Directors Arising from Self Isolation Regulations
The Health Protection (Coronavirus, Restrictions) (Self Isolation) (England) Regulations 2020 (“the Self Isolation Regulations”) imposes obligations to self-isolate on any adult notified that:
- They have tested positive for coronavirus after 28th September 2020.
- They have had close contact after that date with someone who has tested positive.
- A child for whom they are responsible has tested positive for coronavirus or had close contact with someone who has tested positive.
The requisite periods of isolation differ depending on the circumstances. The periods are set out in the regulations, but anyone informed by the NHS’s Track & Trace service of the need to self isolate will be told of the period that applies to them.
Why is this an issue for employers and directors?
Employees are required to notify employers if they are required to self isolate, and can claim SSP (and any additional contractual sick leave entitlement) from day 1 of self-isolation, provided that their absence lasts 4 days or more (and provided their absence is not a result of self-isolation required as a result of returning to the UK from abroad).
Employers who knowingly procure a breach of the Self Isolation regulations (or the International Travel regs if the employer is aware of the requirement to self isolate on an employee’s return to the UK), or allow someone into the workplace who should be self-isolating “without reasonable excuse,” commits a criminal offence.
It is not just the employer which may be guilty of an offence, but any director, other officer or manager may also be guilty if the company’s offence is attributed to their consent (connivance) or neglect in allowing the employee onto their premises.
Any business or individual reasonably believed to have committed an offence may be issued with a Fixed Penalty Notice payable within 28 days. The penalty varies from £1,000 to £10,000 for repeated breaches.
If not paid, prosecution may follow, leading on conviction to a fine and an order to pay prosecution costs.
What should you be doing about this?
The trigger for liability is knowledge, so the best way of avoiding an issue is:
- Ensure that employees are clear that they need (and to whom they need) to report any self isolation requirement imposed on them including on return to the UK from abroad.
- Advise staff that any failure to report is a criminal offence and consider also suggesting that you will in turn report any such failures of which you become aware, to the appropriate authority (to avoid any suggestion of consent or connivance from management or the business).
- Build in some resilience to the notification procedure so it is not dependant on one person being available to take calls or check Emails.
- When a notification is received from an employee, act on it and ensure that the person self-isolating is, without exception, excluded from the workplace.
Alongside the new offences, the business may also be in breach of its duties under sections 2 and 3 of the Health and Safety at Work etc. Act if a Coronavirus infected employee is allowed into the workplace when the employer ought to have been aware of the requirement on him or her to self-isolate. Directors, officers, and managers too can be guilty of an offence under section 37 of the Act if their connivance or neglect was behind the company’s breach. Breaches under the Health and Safety at Work etc. Act can be punished much more severely than the punishments available under the Self-Isolation regulations, with fines, and for individuals with fines and/or a period of imprisonment.
Sue Dearden is an experienced Health and Safety Solicitor in the Finch Legal team of Finch Consulting. If you have any questions arising from self-isolation regulations, or would like to speak to any member of our team please contact Finch Consulting on 01530 412777 or by Email email@example.com.