Coronavirus ‘test and trace’ system could prompt employment disputes surge, experts warn

Staff fears around insufficient safety measures at work and the prospect of redundancies could also spur an increase in tribunal claims, employers cautioned

The government’s new test and trace system to monitor coronavirus outbreaks could contribute to an increase in workplace disputes and even tribunals, some experts have warned. 

The UK's test and trace coronavirus strategy, being rolled out nationwide, means anyone testing positive for the virus will be contacted by text, email or phone and asked to log on to the NHS test and trace website to provide their details, along with those of who they live with, places they’ve visited recently, and the names and contact details of people they have been in close contact with in the 48 hours before symptoms started, so that NHS contact tracers can track them down.

Meanwhile, a contact-tracing app, piloted on the Isle of Wight earlier this month and due for launch in the rest of the UK in June, is designed to work in tandem with manual tracking, and uses Bluetooth to register other phones’ close proximity. If an app user develops coronavirus symptoms, they register those and it alerts other app users. 

Under the scheme, those who have come into close contact with someone who tests positive will receive a phone call, text message or email telling them to stay at home for two weeks, even if they have no symptoms. The idea is to avoid national lockdowns, with more localised restrictions used instead. 

However, Emilie Cole, partner and employment lawyer at Irwin Mitchell, warned of a potential rise in employment tribunals where staff felt unable to stay away from their jobs to self-isolate. The question, she said, was whether employees would be willing to take things as far as making a claim.

“I think there’s a potential for a lot of claims but, the reality is, do people have the stomach to bring them to a tribunal given their personal circumstances?” Cole said. “If they have no other option, then they will.”

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She added that another issue that could prompt a rise in claims was workers’ right to a safe place of work. If staff raised health and safety concerns about working in close proximity to another person who presented symptoms and were subsequently dismissed, they could bring a claim to an employment tribunal, Cole said.

“I’m sure a lot of unionised companies will have widespread action,” Cole said. “It’s all going to kick off after the furlough scheme starts winding down and the money runs out. There will be a lot of redundancies when that ends, and it’s just prepping for that at the moment.”

On Sunday (31 May), the TUC called for the government to bring forward a legal duty on employers not to penalise or discriminate against any workers required to self-isolate once or repeatedly by the test and trace system. The TUC warned that inadequate statutory sick pay – which currently stands at £95.85 per week – and fear of possible loss of income could stop people from acting on public health requests to self-isolate.

“It’s not viable to ask people to self-isolate, perhaps repeatedly, if they will be pushed into financial hardship by doing so," said Frances O’Grady, general secretary of the TUC. “Instead, they will be forced to keep working. That puts them at risk – and their family, workmates and local community too." 

While Kate Palmer, associate director of advisory at Peninsula, said it was still too early to know how the test and trace system would work in practice and its overall implications for employers, she advised businesses to prepare for some level of disruption caused by the system’s introduction.

“Refusing to let staff return to work following a period of absence could result in potential tribunal claims, ranging from constructive dismissal as a result of poor treatment or even discrimination,” Palmer said. “How employers act during this situation will be remembered going forward, and they should bear in mind that while it will be inconvenient to lose staff for two weeks, it is preferable to having the workplace exposed to the virus.”

David Lorimer, director of Fieldfisher, said these were “certainly worrying and uncertain times for employers and employees”, particularly those who were now navigating the reopening of workplaces. But, he said, while it was right to recognise there was a “more general increase” in the risk of tribunal claims at present, this would not be solely related to the test and trace strategy. 

“In fact, that's only likely to result in a dispute where an employer refuses to accept employees' confirmation that they have been tested and must self-isolate, are awaiting results or have been exposed to someone who is infected (traced),” Lorimer said. “Some employers may insist on some further evidence – for instance, screenshots from tracing app notifications or written test results – but the majority are unlikely to take this approach.”

He said disputes were more likely to arise where there was the prospect of redundancies, or where employees refused to come to work because they were concerned that appropriate measures were not in place to protect them.