As reports of the 'pingdemic' hit the headlines this week, we spoke with our resident employment law expert Anna Elliott, partner at Osborne Clarke, to get the low-down on the legal standing for both employer and employee.
Firstly, what is the meaning of the word 'pingdemic'?
The phrase refers to being notified by the NHS Covid-19 app on your phone. When you are “pinged” by the app, you are advised to self-isolate for a set amount of time. The notification is sent after the app registers that you have been close contact with someone who has tested positive with Covid-19.
The number of people being “pinged” by the app has risen sharply over recent weeks, causing difficulties for some industries as large numbers of staff are having to stay at home and self-isolate.
Most commonly, those who are pinged will have to isolate for 10 days but this can be longer if the person goes on to develop symptoms themselves.
What are the employee rights if they get ‘pinged’ - do they have to show their employers?
Employees are not legally required to tell their employer if they get 'pinged' on the NHS Covid-19 App. The NHS Covid-19 app is entirely voluntary and people can choose whether or not to download it. If an individual does get 'pinged' on the app, it is recommended that the individual self-isolates but it is not a legal requirement.
However, in contrast, where employees are notified by NHS Track and Trace of the need to self-isolate (rather than the app) they are under a legal obligation to notify their employer.
What are the employer rights? Do they have the legal rights to demand to see the evidence?
As it stands, employers have no legal right to demand to see the evidence if an employee is 'pinged' by the App. However, they can create a company policy that requires employees to do so going forwards and not to come into the office if they do get 'pinged'.
However, if an employer has a reasonable belief that an employee is abusing the system and relying on a fake 'ping' for their absenteeism, employers may argue that the requirement to provide evidence of the 'ping' is a reasonable instruction.
Failure to comply with the instruction or the unauthorised absence may provide grounds for disciplinary action but this should be approached with caution and will depend on the circumstances.
What are you seeing from your client’s perspective? Are there wholesale absences etc?
We have seen employers suffering staff shortages and confusion over when employees should self-isolate.
Concerns have also been raised over the potential for abuse by those looking to stay away from the workplace, particularly where employers have adopted a policy of allowing employees to take periods of self-isolation as sick leave on company sick pay.
If employees are able to continue to work remotely whilst self-isolating and are not unwell, this is having less disruption on clients and the impact does vary across roles and industries. Where employees can't work from home, some employers are permitting employees to cover a period of self-isolation by taking their annual leave on short notice.
What else do people need to be aware of?
Employers need to consider carefully what evidence they require where an employee has been "pinged" by the app and what pay that employee will receive during any absence.
Employees who are legally required to self-isolate are able to obtain an isolation note and qualify for statutory sick pay. The position on statutory sick pay is less clear for those who self-isolate solely in response to being "pinged" by the app, although low income workers are entitled to a one off Track and Trace payment of £500.
From August 16, people who have received both their Covid-19 jabs for at least 14 days, will not need to necessarily self-isolate if they come into contact with someone who has symptoms or has tested positive for coronavirus so the impact on businesses may lessen from that date.
As evidenced by the government's announcements this week, this is a developing area and we now await further guidance.