Employers risk landing in legal hot water if they try to force a double-jabbed employee into work if they insist on self-isolating, HR and employment law experts have warned, but they do not have to pay them for their time away from work.
On Monday 16 August, the legal requirement to self-isolate after coming into contact with a positive Covid-19 case was removed for all adults who have received two Covid-19 vaccination doses and for under 18s.
However, just because it is no longer a legal requirement to self-isolate, some employees may feel more comfortable doing so.
This raises questions around what employers can do if a double-jabbed worker refuses to attend work, and what risks might arise if an employer insists they need to.
Absence management company Edays has found that 60% of the workforce wouldn’t feel comfortable skipping isolation even if they were legally exempt.
“Upcoming weeks could be challenging as businesses are still trying to strike the balance between ensuring they can operate as smoothly as possible whilst ensuring employees feel safe in their working environments,” said CEO Matt Jenkins.
Do employees have a right to self-isolate if they choose?
Employees do not have the right to choose to self-isolate if they are not required to by law, nor will they qualify for statutory sick pay, said David Jepps, an employment partner at Keystone Law.
“As they would have chosen not to attend work, there is no right to be paid but using up holiday or taking unpaid leave can be agreed by employers,” advised Jepps.
“It is arguable that they could be furloughed – but the decision whether to furlough rests with their employer.”
The furlough scheme is scheduled to be withdrawn by the government on 30 September 2021.
What can HR do if an employee still refuses to attend work?
Kate Palmer, HR advice and consultancy director at Peninsula, said an employer must discuss the reasons why the employee feels they should self-isolate to see if measures can be put in place to help them and others feel safe at work.
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She said: “If an employee chooses to self-isolate, this is likely to be unauthorised leave. Firstly, ask them why they feel they must. Do they feel safe at work? Can you make changes to help with that?
“If there is no good reason for the isolation, consider a reasonable management instruction to attend as soon as possible. Back this up in writing, and make it clear it is not acceptable.
“There may be ways to work around it, such as annual leave, unpaid leave or working from home, but be careful. This may encourage others to do the same.”
Danielle Parsons, a partner at law firm Irwin Mitchell, said employees must generally comply with a reasonable management instruction to return to work, but it will depend on the nature of their work and individual circumstances.
If an employer is faced with an employee who is insisting on self-isolating then it will be important for them to listen to and hear the concerns that they have and try to find a way forward, rather than immediately taking a more heavy handed approach, particularly if the employee is able to work from home” – Danielle Parsons, Irwin Mitchell
“If an employer is faced with an employee who is insisting on self-isolating then it will be important for them to listen to and hear the concerns that they have and try to find a way forward, rather than immediately taking a more heavy handed approach, particularly if the employee is able to work from home. While an employer may be able to take disciplinary action in this situation, this should be carefully considered with legal advice and should be a last resort.”
Parsons said an employee may still have the virus even if vaccinated and not displaying any symptoms, so they should be asked to obtain a negative PCR test result before attending work.
Should the employee be paid if the employer’s policy states that they should still self-isolate if double-jabbed?
Employers may still introduce a policy that requires an employee who has been in close contact with a positive coronavirus case to stay away from the workplace, said Jepps.
“As the employer would be compelling the employee not to come to work then the starting point is that there would still be an obligation to pay them,” he said.
What legal risks arise if the employee is told they must still attend work?
Employers could open themselves up to claims for constructive dismissal if they try to force an employee to attend work in this situation, warned Jepps.
“The employee could leave saying that the employer’s actions breached essential trust meaning that they could treat themselves as dismissed. Dismissing employees for insisting on self-isolation could be unfair unless the employer could prove both a fair reason for dismissing and that it was reasonable to dismiss,” he said.
“Furthermore, if other employees are vulnerable, this could open the door to wider concerns within the workforce about a potentially infectious member of staff attending work. This could lead to a feeling of anxiety or even resentment to the employer for compelling said staff member attending work.”
Parsons said: “Employees should not be put in a situation at work where they could endanger themselves and others, this could amount to a breach of health and safety law and could spread coronavirus to people in high risk groups.
“If an employer attempts to force an employee to come to work, when the employee has expressed concerns about health and safety, then depending on the circumstances, this could give rise to a potential employment tribunal claim for automatically unfair dismissal and/or a discrimination claim.
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“It is important to note that although the UK has eased Covid restrictions, this does not mean that the pandemic is over – employers should still be carrying out Covid risk assessments and taking all reasonable steps to ensure that the workplace is safe.”
