Misconduct in the time of Covid-19

Following breaches of coronavirus regulations by some well-known figures, Paul Reeves, Leanne Raven and Louisa Blundell explain what employers need to know about the new self-isolation rules

What are the key obligations for workers and employers under the new self-isolation regulations?

Under the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, workers who are required to self-isolate and who are due to work at a place other than that where they are self-isolating should notify their employer of the self-isolation requirement and provide start and end dates of the isolation period.  They should do this as soon as possible and, in any event, before they are next due to start work.

Employers must not 'knowingly' allow workers to conduct work in any place other than where the individual is self-isolating. In practice, this means that where an employer is aware that the worker must self-isolate, they must not allow the worker to come into the office or any other site/premises connected with their employment during the isolation period.  

Another key point for businesses is to ensure that workers are made aware of the notification requirement (ie, that the worker should notify their employer if they are required to self-isolate).

What happens if an employer doesn’t comply with the regulations?

Breaches of the self-isolation regulations by employers can result in a fine for that organisation starting at £1,000 for the first offence, increasing to £10,000 for the fourth or subsequent offences.

If the fines aren’t enough to deter breaches, then the possibility of committing a criminal offence might be. A person who contravenes specific parts of the self-isolation requirements without reasonable excuse will commit a criminal offence.  If an offence is committed with the consent or connivance of, or is attributable to the neglect of an officer, both the officer and the body corporate will be liable to prosecution.  

The take-home message for employers should be that all senior staff should be fully briefed on the new self-isolation regulations. 

Does a breach of the regulations by an employee constitute gross misconduct?

What constitutes gross misconduct can depend on the circumstances and vary according to the nature of the organisation. If an individual is in breach of the self-isolation regulations, an employer may consider it an act of gross misconduct if it has put at risk the health and safety of other workers and/or is a flagrant disregard for the rule of law and the employer’s policies and procedures.  

Further, if any such breach is reported by the media (and the press are looking for such stories), this will have an adverse effect on the reputation of the company. If a breach does bring the company into disrepute or harms the business of the organisation, these reasons could be deemed to be gross misconduct depending on the specific circumstances.  

Is there a duty to disclose breaches to regulators?

Employers in regulated industries should consider whether they have a duty to report to their regulator any workers’ breaches of the self-isolation regulations. For example, how does this tie in with an employer’s duty to report offences or character/conduct issues? If there are any doubts, specialist advice should be sought to ensure regulatory compliance. 

Compliance tips for employers

  • Employers should communicate clearly to their workforce that individuals are required to notify them of any need to self-isolate. They should also reinforce to their employees that they should not attend their place of work if they are showing symptoms and they should act in accordance with government guidance.
  • Businesses should consider updating their disciplinary policies to include more examples of gross misconduct pertaining to self-isolation or following other coronavirus regulations.  
  • If policies and handbooks are updated, this should be flagged to staff to ensure they are aware of these changes – employers could cover this in any guidance notes.
  • Employers should make sure there is awareness though clear guidance to staff so there is no confusion.

Paul Reeves is a partner, Leanne Raven a professional support lawyer and Louisa Blundell a trainee solicitor at Stephenson Harwood