Since September 2020, the NHS COVID-19 app has formed an important part of the government’s response to the COVID-19 outbreak and many people have since downloaded the app onto their phones.

The app provides testing for anyone with COVID-19 symptoms, gets in touch with anyone who tests positive to obtain information about their recent contacts, can be used to check into venues and, where necessary, notifies those contacts that they need to self-isolate to stop transmission of the virus. There is also an option to turn on digital contract tracing, which means that if you spend time in proximity to a person that tests positive for COVID-19 you will receive a notification on your phone to self-isolate.

In recent weeks, there has been a backlash against the app after half a million people were pinged and told to self-isolate between 1 and 7 July (the highest figures since the launch of the app). Various politicians have spoken out to criticise the app and suggested that individuals and employers could choose to ignore its instructions, which they claim is undermining businesses.

Many employers are concerned that, with restrictions now lifted in England and Wales and many staff returning to workplaces, they are at risk of mass absences amongst their workforces as a result of staff having the NHS COVID-19 app on their phones.

In this article, we look to address the key issues for employers when it comes to the NHS COVID-19 app.

Do our employees need to self-isolate if they are asked to do so by the app?

Whilst the app is technically part of the NHS Test and Trace Service (the official branch of the NHS set up to track and prevent the spread of COVID-19), there is only a legal requirement for individuals to self-isolate when they have been notified to do so by a relevant authority, being the Secretary of State, a designated member of the NHS Test and Trace Service or a Local Authority.

An individual may be fined in England if they do not stay at home and self-isolate having been instructed to do so by one of these authorities. It is also mandatory that employers must not knowingly require or encourage someone who is being legally required to self-isolate to come to work, and if they do, they will also be liable for a fine of up to £10,000.

In contrast, there is no such legal requirement to self-isolate where an individual has only received a self-isolation notification through the COVID-19 app.

Despite the absence of any legal requirement, the NHS website still recommends that anyone that is pinged by the NHS app should self-isolate. Therefore, employers must be cautious as allowing employees that have been contacted by the app to still attend work could amount to a breach of an employer's duties (for a discussion of these risks, see “Can we insist that our employees do not activate or use the app in the workplace?” below).

Do our staff need to let us know if the app has instructed them to self-isolate?

Any notification will be made privately to the employee through the app and their employer will not know whether they have been asked to self-isolate. An employer will therefore be reliant on an employee making them aware that they or a colleague have received an instruction to self-isolate through the app.

An employer cannot afford to abdicate all responsibility on the matter to the employee. For example, arrangements could be put in place allowing self-isolating employees to work from home. Alternatively, staff may be allowed to continue attending the workplace where they work in a distinct and independent role away from colleagues and where infection prevention measures have been implemented.

However, employers may need to introduce stricter rules, like requiring such employees to work from home, requiring daily lateral flow tests or temporarily altering their duties or the way their work is carried out to avoid face-to-face contact with others. Some industries may also be subject to stricter professional regulations that must be followed.

Can we insist that our employees do not activate or use the app in the workplace?

Amendments to self-isolation rules come into force on 16 August 2021, which is one month after COVID-19 restrictions were relaxed in England and Wales on 19 July 2021. The new rules provide several instances where individuals will be exempt from self-isolation requirements, which be a relief for employers in some sectors.

However, many employers remain concerned that staff members could receive notifications from the app in the workplace suggesting (potentially inaccurately) that they need to self-isolate, creating gaps in the workforce.

There may be industries where, for sensible operational or regulatory reasons, the use of mobile phones in the workplace is highly restricted, for reasons such as confidentiality or child protection. In such industries there may therefore be a pre-existing justification for not allowing employees to bring their mobile devices (and, by extension, the NHS app) into their workplace.

Where there is no clear organisational reason for restricting the use of mobile phones and an employer is more concerned about the app prompting employees to self-isolate and remove themselves from the workplace, the position must be considered very carefully. It seems problematic for an employer to ban the app in the workplace purely to minimise absence levels. Any employer should proceed cautiously before instructing staff not to activate or use the app in the workplace (particularly since the government encourages employers to support employee use of the app within the workplace wherever possible).

Government guidance says that the contact tracing feature of the app may be paused when an individual:

• is working behind a Perspex (or equivalent) screen.
• is putting their mobile telephone in storage, such as in a work locker, and it will not be on their person.
• is a health or care worker practising infection prevention and control (IPC) working in a clinical setting.

An employer is therefore unlikely to be punished or criticised for preventing the use of the app in the above circumstances.

However, if an employer nevertheless restricts employee use of the app for other reasons, the risks include:

• From an employee relations perspective, employees may be concerned that they are being denied an opportunity to protect themselves and their colleagues.

• If there is a COVID-19 outbreak in the workplace, employee absence levels will increase.

• Discrimination claims from those employees who are at higher risk due to a protected characteristic.

• Potential health and safety law implications. Employers should familiarise themselves with their obligations under relevant health and safety legislation.

Should we be keeping details of staff and visitors to our workplace for contact tracing reasons?

Whilst businesses are still encouraged to do so by the government, the legal requirement for businesses to maintain records of staff, customers and visitors for test and trace no longer applies from 19 July 2021. However, the updated government guidance provides that those businesses that do decide to display a QR code should also have a system to collect (and securely store) names and contact details, for those who ask to check in, but do not have access to a smartphone or who prefer not to use the app. The Information Commissioner's Office has also published guidance, which suggests that such organisations:

• Ask for only what's needed.
• Be transparent with customers.
• Carefully store the data.
• Don't use it for other purposes.
• Erase it in line with government guidance.

If you would like more information regarding employers’ duties in relation to COVID-19 or the NHS app, then contact our Employment Solicitors on 0161 941 400 or email the employment team

Patrick Byrne, Associate
Patrick.byrne@myerson.co.uk

Tags: UK200

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