Introduced on 24 September, many welcomed the Test and Trace app’s arrival as another step to contain the spread of Covid-19, while others were concerned about using it for data and privacy reasons.
This is a dilemma for employers. It is not mandatory for people to use the app. Employers can do nothing and leave the choice to download to the employee or express a view about whether the app should or should not be used in the workplace. This is particularly relevant for those businesses that provide work devices.
Employers could introduce a requirement that employees use the tracing app on a device that is provided by the business. If it is not possible to guarantee social distancing between staff in the workplace there are compelling arguments for this approach. Use of the app is another way to protect health and safety in the workplace and should help to minimise sickness absence.
If a business wants employees to use the app and intends to process personal data produced as a result it needs to take advice on whether this complies with its obligations under the GDPR and Data Protection Act 2018. Employers also need to be satisfied about data security if they plan to force employees to use it and share health data with their employer.
If employees do use the app then the employer must rely on employees' self-declaration of exposure to infection. For staff who can work from home during any period of isolation this is fine as their pay and ability to work will not be affected.
New liabilities for employers and employees
On 26 October, the government updated the NHS Test and Trace guidance to ensure better compliance. Employers must not knowingly allow an employee who has been told to self-isolate to come to work or work anywhere other than home. To fail to do so could result in a fine that starts at £1,000.
Employers must also not knowingly allow a worker to come into work, or encourage them to work anywhere other than their place of self-isolation, if the worker has been told to self-isolate by the Test and Trace app.
Workers have a legal duty to notify employers that they have been instructed to self-isolate before they are next due to work. This is enforced by a £50 fine.
Should employees use the app at work?
Pharmaceuticals giant GlaxoSmithKline (GSK), has reportedly told thousands of staff working at its research and development labs and its manufacturing sites to switch off the app when at work. GSK said it has taken this step because these working environments are highly controlled, and the company is “following the highest Covid-19 security and protection protocols”.
Businesses employing those working in closely controlled working environments may choose to follow GSK's lead. Before doing so, they must be confident that they are able to offer and maintain the highest standards of protection against Covid.
Even if these conditions exist, employers should be aware that the app is still an important part of the defence against the virus. Considering this, some employees may feel strongly that they should be allowed to continue to use the app at work as this is part of their fight against the disease. Forcing them to switch off the app is likely to result in employee relations issues. Many stakeholders may also view this negatively leading to reputation management issues.
The pressure on businesses to be confident that they are taking all steps to protect the health and safety of their employees in the workplace using other measures is high. It also puts pressure on businesses to give clear messages about these steps to concerned staff and relevant stakeholders.
The risks for businesses
No employer can prevent an employee from using the app outside work. If an employee develops Covid symptoms but has used the app outside the workplace, without being requested to self-isolate through it, it strongly suggests that the illness has been contracted in the workplace. This potentially enhances the risk of a claim against the employer, especially if the ill employee can point to occasions when the employer's Covid defences were breached.
The employer is responsible for its people's health and safety in the workplace. Requiring staff to download the app is one element for businesses to consider in ensuring employee safety. But it is a delicate balancing act where the employer must centre employee wellbeing and business needs, and consider the impact of such a decision.
Helen Farr is an employment law partner at Taylor Wessing