Coronavirus: guidance for employers on the UK NHS test and trace scheme

2 June 2020 | Applicable law: England and Wales

Testing and tracing have been discussed for some weeks as part of the UK Government's strategy for reopening the economy after lockdown. It appears that it will be some weeks before the NHS 'test and trace' scheme system is fully up and running. Nevertheless, details of the scheme were published on 27 May 2020 and can be found here.

General information

In essence, the scheme will provide a system for identifying individuals - other than those who already share the same household - who have had close contact with a person who develops Covid-19 ('coronavirus') symptoms. The period of close contact is defined as 48 hours before the infected individual's symptoms first appear and continuing after symptoms have developed.

The system will operate by asking symptomatic people to:

  1. self-isolate;
  2. seek a Covid-19 ('coronavirus') test at (or call 119 if they have no internet access);
  3. if the test is positive, self-isolate for 7 days (members of their household should, as previously advised, self-isolate for 14 days);
  4. share their contacts - where possible, the names and contact details (for example, email address, telephone number) of the people they have had close contact with. The guidance says that these details will be held in strict confidence and will be kept and used only in line with data protection laws.

Close contact means:

  • having face-to-face 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; or
  • working in – or having recently visited – a setting with other people (for example, a GP surgery, a school or a workplace).

'Close contact' individuals will be contacted by the NHS by text, email or phone call. They should then log on to the NHS test and trace website or will speak to a trained call handler. They will be told to begin self-isolation for 14 days from their last contact with the person who has tested positive and if they develop symptoms, to carry out steps 2 – 4 above, beginning a new cycle of testing and tracing with their own close contacts.

What do I need to know, as an employer?

The guidance states that employers should support workers who are told to self-isolate and must not ask them to attend work. There is also separate guidance on the NHS test and trace service for employers, businesses and workers. That guidance confirms that workers in self-isolation are entitled to Statutory Sick Pay (SSP) for every day they are in isolation, as long as they meet the eligibility conditions. Guidance has also been produced for employees that are unable to work because they are self-isolating.

The main points in the employer guidance for you to consider are as follows:

  • Workers will be told to isolate because they (1) have coronavirus symptoms and are awaiting a test result; (2) have tested positive for coronavirus; (3) are a member of the same household as someone who has symptoms or has tested positive for coronavirus; or (4) have been in close recent contact with someone who has tested positive and received a notification to self-isolate from NHS test and trace.
  • You should continue to communicate with workers in self-isolation and provide support. This includes allowing people to work from home if they remain well and if it is practicable to do so. This might include finding alternative work that can be completed at home during the period of self-isolation.
  • You must ensure that any self-isolating employee who is unable to work from home is receiving sick pay. This is likely to mean either Statutory Sick Pay ('SSP') or, contractual sick pay if available under the contract (although the guidance does not explicitly say this). You can give staff the option to use their paid leave days if they prefer (which will be primarily relevant to those who have no right to contractual leave or have exhausted their entitlement).
  • Employees in self-isolation are entitled to SSP for every day they are in isolation, as long as they meet the eligibility conditions.
  • The NHS test and trace service will provide a notification to the employee that can be used as evidence that the employee has been told to self-isolate and can be disclosed to the employer, thus enabling you, where appropriate, to reclaim the SSP. Small and medium-sized employers (defined as those with fewer than 250 employees) are now able to claim reimbursement of their SSP costs for the first 14 days’ sickness absence for each employee affected by the virus. The repayment will cover up to two weeks starting from the first day of sickness if the employee is unable to work because he or she either has Covid-19 or is self-isolating at home. Guidance on reclaiming SSP, including details of the online service, is available here.
  • You can ask an affected employee to take some paid holiday for the period of self-isolation, entitling them to full pay for the relevant period, as opposed to SSP, should the employee so choose.

There are a number of as yet unanswered questions about how the scheme will operate and how compliant those who are contacted by the NHS will be once they are asked to self-isolate. As well as considering how you will support individuals who have self-isolated in accordance with the scheme, you may want to consider the message you deliver to your workforce about your own expectations, as you negotiate the difficult decisions involved in restoring the normal functioning of their businesses.

If you need further explanation or help with any of the above points, please speak to a member of our employment team. For more information on furloughs, see our FAQs article.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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