An employers’ guide to the NHS test and trace service and app

The Government has asked businesses and employers play their part in the COVID-19 recovery strategy by making their workplaces as safe as possible, by encouraging workers to heed any notifications to self-isolate and by supporting them when in isolation.

The guidance states that although the test and trace scheme may seem disruptive for businesses, it is less disruptive than an outbreak of COVID-19 in the workplace will be, and far less disruptive than further periods in lockdown.

We have put together some comprehensive guidance, including answers to frequently asked questions, on the core aspects of these two services and where the scheme may have an impact of HR practises.

The FAQs are at the end of this long read – and our FAQ notes along the way indicate that there is more content in this section. As always, please ask us if you need assistance with this or any other aspect of employment law or HR.

Corona

What will the test and trace service do?

The scheme will allow the Government to trace the spread of the virus and isolate new infections, with the hope that the data will provide an early warning if the virus is increasing again, locally or nationally.

The main trigger for the scheme is the testing for anyone who develops symptoms of coronavirus so they can quickly be tested to find out if they have the virus (FAQ1). If anyone tests positive the scheme will be used to trace close recent contacts and, if necessary, notify them that they must self-isolate at home to help stop the spread of the virus (FAQ2). The close contacts will include their work colleagues, if they have been into work, as well any anyone they have seen socially or who they live with (FAQ3).

The test and trace scheme is designed to supplement the employers COVID Secure assessment and any precautions already taken by employers (FAQ4). We have some free tools to help you make a COVID Secure assessment.

The scheme also includes the ability to recognise if multiple cases of coronavirus appear in a particular workplace (FAQ5). If this happened an outbreak control team from either the local authority or Public Health England will, if necessary, be assigned to help the employer manage the outbreak. Employers are being directed towards their local authority in the first instance.

If anyone develops symptoms, as individuals we are being asked to personally alert the people with whom we have had close contact over the last 48 hours and tell them that we might have coronavirus but are waiting for a test result (FAQ6).

At this stage (until the test result is known), those people/colleagues do not need to self-isolate, but they should take extra care in practising social distancing and good hygiene, like washing their hands regularly and they should also watch out for their own symptoms (FAQ7).

If anyone gets a positive test, someone from the test and trace team will contact them by text message, email or phone and ask them to share information about any close contacts they have had just before or after they developed symptoms (FAQ8).

Close contact means:

  • having face-to-ace contact with someone (less than 1 metre away)
  • spending more than 15 minutes within 2 metres of someone
  • travelling in a car or other small vehicle with someone (even on a short journey) or close to them on a plane
  • if you work in – or have recently visited – a setting with other people (for example, a GP surgery, a school or a workplace).

They will then be sent a link to the NHS test and trace website and asked to create a confidential account where they can record details about their recent close contacts (FAQ9).

The contacts of the infected person will then be contacted by the test and trace team by text messages, email or phone to advise them to self-isolate (FAQ10). If the NHS contacts anyone it will be from one number, which will appear as 0300 013 5000 on their phone or by text message which will come from ‘NHS’.

The contacts will not be told the name of the person who has tested positive (FAQ11). All texts or emails will ask the individual to sign into the NHS test and trace contact-tracing website, which is https://contact-tracing.phe.gov.uk/

Once on the website the individual will be asked:

  • for their full name and date of birth to confirm their identity, and postcode to offer support while self-isolating
  • about the coronavirus symptoms they may have been experiencing
  • to provide the name, telephone number and/or email address of anyone they have had close contact with in the 2 days prior to your symptoms starting (FAQ12)
  • if anyone they have been in contact with is under 18 or lives outside of England
  • if they have family members or other household members living with them. If so, they will be advised in line with the current medical advice they must also remain in self-isolation for the rest of the 14-day period from when the individual’s symptoms began.

Note: They will not be asked to make a payment or supply financial information or security information relating to bank accounts, etc. We anticipate that fraudsters may make fraudulent calls or send out phishing texts/emails in connection with the scheme. If you would like us to prepare tools for you to use to raise staff awareness around this please let us know.

How does the NHS coronavirus app work?

The Government are currently developing a coronavirus app, which is being tested. When ready it will be rolled out nationally to supplement the other forms of contact tracing. The NHS COVID-19 App automates the process of contact tracing. Its goal is to reduce the transmission of the virus by alerting people who may have been exposed to the infection so they can take action to protect themselves, the people they care about and the NHS.

The system appears to follow the general advice with regards to the test and trace service and anyone who has had close contact with someone who has tested positive for coronavirus will be contacted and told to self-isolate and guided to the NHS test and trace contact-tracing website.

The technology used to develop the app (FAQ13) is based on research evidence developed by epidemiologists, mathematical modellers and ethicists at Oxford University. Once anyone installs the app, (FAQ14) it will start logging the distance between their phone and other phones nearby that also have the app installed using Bluetooth.

This anonymous log of how close you are to others will be stored securely on your phone. If you become unwell with symptoms of COVID-19, you can choose to allow the app to inform the NHS which, subject to sophisticated risk analysis, will trigger an anonymous alert to those other app users with whom you came into significant contact over the previous few days.  

In future releases, it is hoped that the app will enable people to choose to provide the NHS with extra information about themselves to help the NHS identify hotspots and trends.

Frequently asked questions about the NHS test and trace service and app

FAQ 1a What should our employees do if they develop symptoms and need to arrange a test?

Answer: If the employee develops the symptoms whilst at work they should immediately inform their Line Manager, who should firstly make sure the individual is provided with an isolated area away from all other members of staff whilst arrangements are made for them to return home.

If the employee does not attend work and advises you that they have symptoms then they should remain at home. As with all the guidance your employee must immediately self-isolate and stay at home for at least 7 days from when their symptoms started.  Anyone else in their household must self-isolate for 14 days from when the employee (who they live with) started having symptoms.

They must then arrange for a test to confirm whether or not it is coronavirus (this would trigger the test and trace process). The employee can order a test online at https://www.nhs.uk/ask-for-a-coronavirus-test or if the system is down or they have no internet access by calling 119.

The employee needs to get the test done in the first 5 days of having symptoms and they must remain in isolation whilst they wait for the results. If the employee lives with someone who has symptoms, they can book a test and go to a test centre together. In England and Wales, children of all ages can have the test. In Northern Ireland and Scotland, testing is only available for children aged 5 and over.

The testing appointment can include a maximum of 3 other people for testing. They must all:

  • arrive in the same vehicle
  • sit next to a window in the vehicle

If the test comes back positive, they must complete the remainder of the 7-day self-isolation. If the employee shares a house with someone who has a positive test result they must complete the self-isolation for 14 days from when the person they live with started having symptoms.

If the test is negative, they and anyone they live with can end the isolation and return to work.

FAQ 1b What do I need to pay the employee whilst they are at home waiting for the test or the results of a test?

Answer: If the employee is waiting for a test or awaiting results of a test they should be considered as self-isolating. You must not ask them to attend work. 

The employee is entitled to Statutory Sick Pay (SSP) for the period of time they are self- isolating and awaiting a test. This is from the first day they are absent from work due to the following reasons:

  • they have coronavirus
  • they have coronavirus symptoms, for example a high temperature, a new continuous cough or a loss of, or change in, sense of smell or taste
  • someone in their household has coronavirus symptoms
  • they have been advised by the NHS test and trace team to self-isolate.

If the employee’s test is not as a result of the test and trace scheme, they will not have a notification from the scheme. In which case, you should ask your employee to access NHS 111 to submit their details and gain a self-isolation note. You will need a copy of the note and a reference if you are to claim back the SSP payment from the Government, this you would do through the Coronavirus Statutory Sick Pay Rebate Scheme.   

If your contract provides for enhanced contractual sick pay you may need to pay the employee in accordance with their contractual terms.

FAQ 2a What should I do if an employee contacts me to tell me they have received a text message, email or phone call to tell them to self-isolate?

Answer: Ask your employee to provide some form of evidence of the notification, this is easier if they have received an email or a text message. The NHS test and trace service will provide a notification that can be used as evidence that someone has been told to self-isolate. The employee will be told that this notification can be shared with an employer or education provider.

If your employee is contacted by the NHS test and trace team by phone, the service will be using a single phone number: 0300 013 5000 which should come up on their call log. If they are contacted by text message the message will come from ‘NHS’.

You may have an internal document that you could ask them to completand attach a copy of proof if you are able.

You must tell them not to attend work and to remain at home and self-isolate as instructed. You may wish to discuss with them whether they are able to work from home during the period of isolation if they are not experiencing symptoms or feel unwell.

FAQ 2b What do I need to pay the employee whilst they are at home self-isolating?

Answer: If the employee has no symptoms then consider if the employee can work from home. If the employee is unable to work from home, they must be given the option to take paid holiday leave if they are entitled. If they are unable to work from home and do not wish to take paid holiday leave or are not entitled to it the employee is entitled to Statutory Sick Pay (SSP) for the period of time they are self- isolating, see FAQ 1a.

If the employee’s self-isolation is not as a result of a notification from the test and trace scheme, you should ask your employee to access NHS 111 to submit their details and gain a self-isolation note. You will need a copy of the note and a reference if you are to claim back the SSP payment from the Government, this you would do through the Coronavirus Statutory Sick Pay Rebate Scheme.

If your contract provides for enhanced contractual sick pay you may need to pay the employee in accordance with their contractual terms.

FAQ 2c What should I do if an employee contacts me to tell me that someone in their household has received a text message, email or phone call to tell them to self-isolate?

Answer: Your employee is not required to self-isolate unless the member of the household starts to develop symptoms. However, they should avoid contact with the individual and follow social distancing guidelines and follow advice on hygiene.

If the member of the household starts to develop symptoms then your employee will need to self-isolate for a period of 14 days. The member of the household will be required to take a test. The NHS test and trace service will provide the member of the household with notification that can be given to your employee as evidence that someone in their household has been told to self-isolate. The employee will be told that this notification can be shared.

Please refer to FAQ 2b for guidance on the steps you can consider whilst your employee is self-isolating.

FAQ 3a Will our employees be legally obliged to give out the personal details of their colleagues?

Answer: The personal details employees will be asked to provide should be limited to the contact details of anyone they have been in close contact with – this will include a mobile telephone number or an email address so that the NHS can text or email them to provide advice on self-isolation.

At the time of preparing these questions, the Government’s position was that the use of the test and trace system (and presumably the provision of this information) will be voluntary with people trusted to “do the right thing”. However, Matt Hancock has stated that the scheme may be made mandatory “if that’s what it takes”.

It is therefore possible that in the future it will become a legal requirement for staff to comply with the test and trace scheme rules and they may face fines if they don’t.

FAQ 3b How does this effect our Data Protection policy in relation to us giving employee’s personal details to the test and trace scheme without their express permission?

Answer: Your Data Protection policy will cover what personal data you collect, why you collect it and who you might disclose it to. It will most likely include confirmation that the personal data you will collect will include personal contact details and health information. And, it will probably state that you will use this personal data for various reasons including ‘complying with any legal obligation’ or ‘where necessary to protect your vital interests or that of another person’. It is unlikely that your policy will go as far as to say that you may disclose personal data to Public Health England or the test and trace scheme, but it should say that you will ensure that any organisation you share personal data with has appropriate data protection measures in place.

If you are required to give out staff’s personal details under the test and trace scheme, you do not need to amend your Data Protection policy or seek explicit consent from each individual. However, we do recommend that you circulate a notice to say that you will share specific information (including name, and contact telephone number or email address) with the NHS/ Public Health England for the purposes of the test and trace scheme and for use solely in connection with that scheme. We recommend that you include a link to the NHS/ Public Health England privacy notice as this sets out more information about what they will do with the personal data and how they will look after it.

The notice is available here:  https://contact-tracing.phe.gov.uk/help/privacy-notice

FAQ 3c How does this effect our Data Protection policy in relation to our employees giving out the personal details of their colleagues, without their colleague’s express permission?

Answer: If your staff are required to give out colleagues’ personal details, the interplay with your Data Protection policy will depend on whether they have those personal details purely by virtue of the job role (for example, they have accessed the information via your systems or files) or whether they have those personal details due to personal friendships and connections outside of work.

Your Data Protection policy should prohibit staff from accessing, using or disclosing personal data, including contact details, belonging to their colleagues without authorisation. For staff who have authorisation, your policy should make clear that staff must not use the personal data for any reason other than work.

So, if your staff will need to access the personal data via your systems or files or other sources used in connection with their work in order to disclose it to the NHS/ Public Health England, this is likely to be a breach of your Data Protection policy. We recommend that you circulate a notice to remind staff that they are not permitted to access or share personal data about colleagues, including contact details and that to do so will be a breach of your Data Protection policy. We recommend that you advise staff that if they believe they need to share staff contact details with NHS/ Public Health England under the test and trace scheme they should speak to their manager/ your Data Protection Officer who can help with this.

If the employee has their colleagues’ personal contact details through personal friendships and connections outside of work, then this falls outside of the scope of your Data Protection policy.

FAQ 3d Can we instruct our employees that this will be in breach of our policy and that they must speak to a manager first for advice before providing a colleague’s person/contact details on the NHS website?

Answer: As set out above, this will depend on where the employee is getting the personal data from. If will need to access the personal data via your systems or files or other sources used in connection with their work then you can instruct them that to do so will be a breach of your Data Protection policy and that they must speak to their manager/ your Data Protection Officer (as above). 

If they have their colleagues’ personal contact details through personal friendships and connections outside of work, then the guidance indicates that they do not need to inform you before disclosing the information to NHS/ Public Health England.

FAQ 4a Should I update my risk assessment to include details and guidance about the test and trace and the app?

Answer: Yes, the risk assessment should be a ‘working document’ that should be updated as changes occur either with the official guidance, risk level, internal precautions or as new systems such as test and trace and the app are introduced.

Employers should keep their employees up to date with the changes as soon as they happen and consult them about the changes. Employers should consider sharing information with employees from reputable and official sources, including this guidance to ensure the employee is receiving the correct advice and not relying on unofficial myths and rumours.

FAQ 4b Once this is all in place and if my employees all use the app can I remove the other systems and precautions I have in place as a result of my risk assessment?

Answer: No, the NHS test and trace service should be seen as additional or as a replacement for your internal risk assessment (also known as your COVID Secure Assessment). In terms of the employer’s duty of care it would not be reasonable or sufficient for an employer to claim they opted to rely on this service to protect their employees.  

FAQ 5 COVID-19 is a reportable disease, with this new test and trace scheme in place does it mean I do not have to report any positive cases with employees under RIDDOR?

Answer: You should only make a report under RIDDOR when one of the following circumstances applies:

  • an accident or incident at work has, or could have, led to the release or escape of coronavirus. This must be reported as a dangerous occurrence
  • a person at work has been diagnosed as having COVID-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease
  • a worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent.

For an incident to be reportable as a death due to occupational exposure to coronavirus there must be reasonable evidence that a ‘work-related exposure’ caused the worker’s death. This wording suggests that it is likely to apply specifically to health care settings where employees are treating or caring for those with COVID-19 and the nature of the employee’s work put them at a risk of exposure to the virus.

FAQ 6a Do I have to inform my employees that this requirement to alert people who they’ve been in contact with in the last 48 hours that they might have coronavirus is an explicit instruction and state that they may face disciplinary action if they do not inform their colleagues and their manager?

Answer: No, you’re not under a legal obligation to do this. However, this could change if the test and trace scheme becomes mandatory and it would be a good idea in any event.

At the moment, you have a legal obligation to conduct a risk assessment to reduce and control risks connected with coronavirus in your workplace. As part of this, you may have introduced an employee screening questionnaire and/or obligation on employees to self-report to you any symptoms of coronavirus. If you haven’t, then we’d recommend considering it as a useful means of limiting the potential spread of coronavirus in your workplace and the risk to health and disruption to your business that may come with it.

The guidance for the test and trace scheme also asks employers to support workers who need to self-isolate as a result of the test and trace scheme. This doesn’t go as far as placing a legal obligation on you to make use of/compliance with the test and trace scheme mandatory, but it indicates that you are expected to positively encourage the use of and compliance with the scheme.

FAQ 6b If an employee informs the company or their manager, can we contact the colleagues they have been in contact with rather than them having to do this, especially if they are ill?

Answer: Yes. Your Data Protection policy will confirm that you collect personal data including contact details and health information and that you will use it for various reasons including ‘complying with any legal obligation’ or ‘where necessary to protect your vital interests or that of another person’. It is likely that this action will fall within the scope of the second reason – i.e. you are contacting staff in their vital interests relating to their health/ risks of coronavirus. If the test and trace scheme becomes mandatory, then this action may also fall within the scope of complying with a legal obligation.

FAQ 6c My employee is insisting on his/her colleagues providing their personal email and phone number so he/she can comply with this scheme and has refused to work with those colleagues who will not give him/her their details, what should I do?

Answer: You need to try and diffuse the situation. The colleagues are not obliged to share their personal contact details, but the employee who is upset may feel as though they’re not complying with their civic duty – we are seeing that people are having different responses to the risk of coronavirus and compliance with Government guidance, this employee may be frightened and stressed.

You could speak with the employee who is upset and ask for the names of the colleagues to see if you’re able to agree with the colleagues that you’ll supply their contact details to the test and trace scheme instead. Whether you can then insist that those colleagues allow you to supply their contact details and/or do this without their permission will depend on what you’ve communicated around this – see FAQ3b.

FAQ 7a Do I need to include additional measures in my risk assessment for those who have been contacted, but are waiting to hear if the person they have been in contact with tests positive?

Answer: It would be wise to review your risk assessment in light of the test and trace system and make reference to it where appropriate, this will make clear that you are reviewing the measures you have in place and keeping them up to date.

In terms of any new action, the test and trace system should not require any additional measures within the assessment, however you could reference the test and trace scheme as you would with any precautionary measures around an employee of a member of their household developing symptoms of coronavirus.

FAQ7b My employee is refusing to come to work until they hear that the person they have been in contact with has a negative test result, what should I do?

Answer: If the employee has been contacted by an individual and told that they’ve been in contact with someone who may have symptoms of coronavirus, they do not have to self-isolate until they receive a notification through the test and trace scheme to do so. However, they should take more care to social distance. If they still refuse to come into work, then you may need to consider whether they can work from home, take some holiday or take some unpaid leave.

If they have received a notification through the test and trace scheme that they should self-isolate until a test result comes back, then they should comply with this. However, we recommend that you ask for evidence of the notification. The difficulty will come with the anonymous nature of the system. The employee may not know which of their contacts has developed systems in order to know and check what their test results have been.

We hope that the system will include a ‘check back’, where the tracer will inform the employee of the contacts results, but we are yet to hear about this or see clear evidence that this will happen and will work in practice.

FAQ 8 Do I need to ask for evidence of the contact from the NHS with my employee, if so, what can I ask for?

Answer: The NHS test and trace service will provide a notification that can be used as evidence that someone has been told to self-isolate. The employee will be told that this notification can be shared with an employer or education provider.

We would urge all employers to request a copy of this notification and to keep it on the employees file. You may wish to inform your employee that you will need this evidence in order to pay them and claim a rebate for SSP through the Coronavirus Statutory Sick Pay Rebate Scheme. (Remember that the employee does have a right to request paid holiday leave, if they have any entitlement and prefer to use this than receive SSP).

If an employee is receiving multiple contacts from the NHS test and trace service it could indicate that they are breaching the rules on social distancing or that they do not understand what is required to keep them safe. In this instance the employer may decide to have a discussion with the employee to remind them of the safe guidance in place.

FAQ 9a My employee has been told to go on onto the NHS test and trace website but they do not have internet access what should I do?

Answer: The notification your employee will receive from the NHS will advise them what they should do if they do not have internet access. If an employee does not have internet access or if they are unable to complete the online process one of the NHS contact tracers will contact them by phone to gather the information.

We anticipate that fraudsters will try to make use of this scheme and may make calls or send phishing texts/ emails to try and obtain financial information/ payments from people. If you know that your staff may not be alert to these risks you may want to provide them with additional information. If you would like us to prepare a toolkit for you, please let us know.

FAQ 9b My employee has asked if I can log onto the NHS test and trace website for them and complete the process on their behalf, what should I say?

Answer: If your employee has been asked to log on to NHS test and trace website they will have received a link and will need to create a confidential account therefore you should not complete the process on their behalf.

FAQ 9c I have been advised that an employee is not intending to follow the scheme and log onto the NHS test and trace website as they don’t trust that the information will be kept secure and not used for other things, what should I do?

Answer: The Government states that employers should encourage their employees to heed any notifications and to use the NHS test and trace website. You should explain to them the importance of using the scheme and the potential risk to themselves, their family, colleagues and the business. Reassure them that the information they give will be handled in strict confidence and will only be kept and used in line with data protection laws.

You may wish to refer them to the NHS/ Public Health England and the NHS App privacy notices, which are available here: https://contact-tracing.phe.gov.uk/help/privacy-notice

https://www.nhsx.nhs.uk/covid-19-response/nhs-covid-19-app/

These set out information about what data is collected, why it is collected and who it is shared with. This document makes clear that the data collected is used only for the purposes of the test and trace scheme, that it is kept securely and that access is limited to authorised persons.

This might reassure them. The NHS privacy notice also sets out information about individual’s rights – they are able to ask the NHS for a copy of the information held about them and to ask for the information to be corrected or deleted (although the NHS may refuse to correct/delete information if they feel they can’t do so because it is in the public interest).

The employee can exercise these rights by emailing Public Health England at FOI@phe.gov.uk or they can find out more about the test and trace scheme and use of their information by emailing the Public Health England Data Protection Officer at dataprotectionofficer@phe.gov.uk

FAQ 10 Can I withhold pay to an employee who is refusing to provide me with evidence that they have been contacted and told to self-isolate?

Answer: You should explain to them why it is necessary that they provide you with the evidence. If they do not do this and they remain off work, do not work from home or request paid holiday then this should be classed as unpaid leave. You should discuss the situation with them and ensure that you have sought advice if you intend to commence disciplinary process. 

If they are at work and you believe that they are refusing to provide evidence to avoid self-isolation and being paid SSP you should arrange a meeting to discuss the situation and advise them that they may be in breach of health & safety guidelines and as such putting their colleagues and the business at risk.

You should consider whether it is necessary to suspend the employee however be mindful that suspension should be at full pay. You should seek advice in the event that you intend to commence the disciplinary process.

FAQ 11a My employee thinks someone has given their details to the test and trace team maliciously because it is anonymous and they don’t want to isolate, what should I do?

Answer: If an employee has received a text message or email telling them to self-isolate then they should inform you of this and comply with the message. Under the guidance, you are to support them in self-isolating and not ask them to come into work.

If they believe that the information given is malicious, you should ask for more information about who they think might have done this and why. They may know exactly who they’ve been in contact with and that those people have not had symptoms of coronavirus or used the app/ test and trace scheme.

If they suspect someone within your workforce, you should investigate it by speaking to that person – you might ask when they started experiencing symptoms, when they were in contact with this employee, etc. If the person they suspect is not someone within your workforce, then there is very little you can do to investigate it.

Another option is for you to agree with the employee that they will arrange to have a test and, if that proves negative, return to work at that point.

If you find yourself in this situation, we recommend that you seek some advice from us. In the absence of very clear evidence of malicious behaviour (which is likely to be hard to obtain), or a negative test result, you must comply with the requirement for the employee to self-isolate due to the potential risk of investigation by the HSE if it becomes known that you did not comply.

FAQ 11b My employee thinks the information about them being in contact with someone who has symptoms or who has tested positive is incorrect and they have ignored it, what should I do?

Answer: You have a duty to positively encourage the use of and compliance with the test and trace scheme. This is not currently a legal obligation, but the duty to take all reasonable precautions in relation to employee health and safety is a legal obligation.

With this in mind, you should require the employee to comply with the instruction to self-isolate with immediate effect. You may also consider disciplinary action if you’ve clearly communicated to staff the requirement to inform you of any instruction to self-isolate and/or a requirement for staff to comply with the test and trace scheme and they have failed to do so.

Due to the changing information available and complexities of the test and trace scheme, we recommend that you seek advice from us before commencing disciplinary action.

FAQ 11c An employee has tested positive for coronavirus and their colleagues who they had close contact with them are refusing to self-isolate and accept only SSP as they were exposed to the risk at work. They are blaming the company for putting them at risk. They are insisting that we put them in harm’s way so must pay them full pay if they are required to self-isolate, what should I do?

Answer: You will have taken reasonable precautions to make your workplace COVID Secure (if you need any assistance with this, please let us know). As part of keeping your processes up to date, we recommend that when you issue communication to staff around the test and trace scheme and include a requirement to notify you of any instruction to self-isolate. You should also make clear how any period of self-isolation in response to such an instruction will be paid. This will help to manage expectations.

The minimum obligation is to pay SSP and to offer staff the option of using some of their paid holiday entitlement. If you have a sick pay scheme that provides for more than SSP, then staff may have an expectation that they will receive this and so it will be worthwhile clarifying that self-isolation in response to an instruction under the test and trace scheme will not fall within your sick pay scheme and will be paid on the basis of SSP only. Please note that if the person self-isolating develops symptoms you may have to move them on to your sick pay scheme.

FAQ 12 We have received a complaint from an employee (A) that one of their colleagues (B) has given their contact information to the test and trace team without their permission and they have said it is a breach of Data Protection, what should I do?

Answer: This will depend on where B got the personal data from.

If they accessed the personal data through your systems or files, or they had access to it only by virtue of their duties for you, then this disclosure is likely to be in breach of your Data Protection policy. See FAQ 3c. In this case, you may want to investigate the situation and consider whether disciplinary action is appropriate. Due to the changing information available and complexities of the test and trace scheme, we recommend that you seek advice from us before commencing disciplinary action.

If they already had the personal data by virtue of their personal relationship with A outside of work, then it is unlikely that they’re in breach of the Data Protection policy. It is also unlikely that this will amount to a breach of data protection laws, as these exist to govern the collection, use and disclosure (“processing”) of personal data by organisations and tend not to apply to processing by private individuals.

However, if the employee is very concerned, then you need to do what you reasonably can to alleviate their concerns as this may escalate to a grievance. You may wish to share some information about the privacy protections in place around the test and trace scheme, see FAQ 9c.

FAQ 13a Can I make the use of the NHS app mandatory and a condition of employees returning to work from furlough leave?

Answer: You cannot make use of the NHS app mandatory, particularly where it would have to be downloaded to staff’s private phones. You could potentially make it mandatory for company owned phones, but staff may not keep these in their possession outside of working hours which may limit their effectiveness.

You could talk to staff about the benefits of the NHS app and take an educational and encouragement stance. It should be noted them many people are concerned about their privacy and how data about their movements will be used and stored. Where staff are worried, you can explain that the information surrounding the NHS app indicates that data is recorded anonymously, and point them in the direction of the privacy notices, see FAQ 9c.

You can (and should) make it mandatory for employees to notify you of an instruction to self-isolate and to comply with the test and trace scheme insofar as it concerns contact with people at work. You could then potentially bring disciplinary action against employees who don’t comply with these rules. Due to the changing information available and complexities of the test and trace scheme, we recommend that you seek advice from us before commencing disciplinary action.

FAQ13b Our employees are not allowed their phones on them at work, but they are complaining that this means that the app will not trace them and will mean they are at risk. They have asked to have their phones on them whilst working, can I refuse?

Answer: Yes, you can continue to refuse this request, especially if this ban is originally in place due to food safety or health & safety restrictions.

If you are able to temporarily relax this rule without further complications, we would urge you to consider this. The apps ability to trace the infection is seen as useful and could help identify any asymptomatic carriers in the workplace and prevent a wide spread infection within your workforce.

FAQ 14 An employee is refusing to work with people who are not using and have not downloaded the app, what should I do?

Answer: It is important to talk to all employees about their concerns, especially at the moment. We would recommend that you explain to the employee that this is every individual’s personal choice and that as their employer you have no power to instruct employees on the use of their personal phones for this purpose.

You may also take the employee through your COVID Secure assessment and make sure they understand all the measure you have already put in place to protect them whilst at work and make clear that the app is just one aspect of the precautions.

If their concerns continue and you are not able to agree for them to work from home you could consider other options such as putting staff into teams, those who have and use the app and those who don’t. If you are unable to make any arrangements to appease the situation it might help to give your HR adviser a call to discuss the specific situation and your options.