With case numbers rising sharply in England as restrictions are lifted, the country is experiencing what has been dubbed a ‘pingdemic’. Record numbers of people are being ‘pinged’ by the NHS Test and Trace app, with more than 600,000 people told to self-isolate in the seven days up to 14 July.
However, the increasing number of people being contacted has sparked food shortages and train cancellations as workers are told to stay at home.
Some fully-vaccinated workers are exempt from self-isolation if they are pinged, such as those working in food production and supply. However, some employers of “non-critical” workers are asking staff to turn off the Test and Trace app so they don’t get told to self-isolate.
But is this legal - and what should you do if your employer asks you to stop using the app?
Mark Alaszewski, solicitor at the legal firm Didlaw, says that employers are not allowed to ask their employees to turn off their Test and Trace app.
“Employers have a legal duty to provide a safe working environment and to take reasonable steps to protect the health and safety of their staff,” he says. “By asking you to turn off your app your employer is asking you to put yourself in a position of ignorance as to whether you have recently been exposed to a potentially lethal virus.
“This could endanger you, your colleagues, and even your family and friends. The instruction would almost certainly be in breach of your employment contract,” says Alaszewski. “It is also likely to be discriminatory towards any colleagues who are at a higher risk due to their age or conditions such as diabetes or asthma and could give rise to a personal injury claim were any colleague to contract COVID-19 and become seriously unwell.”
If your boss asks you to pause the contact tracing app, Alaszewski says you should politely refuse. “Your employer’s ability to force you to do something is ultimately based upon the law and in this case the law is not on their side,” he says.
“There is legal protection for employees who are treated negatively because they raise a legitimate health and safety concern. If your employer attempted to discipline or dismiss you because of your refusal to turn off the test and trace app you would almost certainly have an employment tribunal claim.”
As with many workplace disputes, Alaszewski adds, it is also worth exploring if there is a sensible middle ground which could be reached, such as taking a PCR test.
If you are contacted by NHS Test and Trace and told to self-isolate, it is a legal requirement that you must do so. However, this is not the case if you are pinged by the NHS app and told to isolate. The app is only advisory, and while it is strongly recommended you self-isolate when you are told to, there is no legal requirement for you to do so.
If you have been in close contact with someone who tested positive for COVID-19, you will be alerted by NHS Test and Trace by text, email or phone call. You will be told to self-isolate for 10 days from your last contact with the person who tested positive.
You are legally required to self-isolate if you are told to do so by NHS Test and Trace. If you don't or if your manager prevents you from doing so, you or your employer could get a fine of £1,000 or more.
But if you are told to self-isolate via the NHS Covid-19 app as you have been in close contact with someone, you should self-isolate and get a test, but this is not a legal requirement. The government advice is that you should self-isolate for the full period, even if you have no symptoms and even if you test negative.
“There is actually no legal requirement to self-isolate in the event of being pinged, there is only a government recommendation that it is the right thing to do,” says Alaszewski.
“A pragmatic solution may therefore be for your employer to arrange for you to have a PCR test in the event of your being pinged,” he says. “This could provide certainty that you do not have COVID and enable you to return to work without any risk to your colleagues.”