Many will have seen in the news recently that a number of employers across England and Wales are facing staff shortages as a result of what is being termed the “pingdemic”. Recent figures have shown that more than 600,000 people in England and Wales between 8^th – 14^th July 2021 were notified/”pinged” by the NHS COVID-19  app to self-isolate for 10 days after their apps deemed them to have been in close contact with someone who had tested positive for COVID-19.

At the time of writing this article, the English Government have announced that they will be publishing a list of professions that will be exempt from self-isolating for 10 days if they have been “pinged” by the NHS COVID-19 app. However, the Welsh Government has announced that the exemptions will not apply in Wales.

We have recently received a number of queries from employers with regards to the effect the “pingdemic” is having on their business and we have therefore addressed some frequently asked questions below:

1. Can employees be asked to turn off their NHS COVID-19 app’s whilst at work?

The NHS guidance states that there are some specific workplace scenarios when individuals are advised to pause the contact tracing feature on their apps. These are:

• When you are working behind a fixed Perspex (or equivalent) screen and are fully protected from other people;
• If you store your phone in a locker or communal area, for example while working;
• If you are a worked in health and social care and are wearing medical grade PPR such as a surgical mask; and
• If you are a healthcare worker working in a healthcare building such as a hospital or GP surgery.

If you are considering relying on the above guidance when asking employees to pause the contract tracing feature on their apps then it is crucial that you seek further advice as the situation is different between England and Wales.

Notwithstanding the NHS guidance, it is crucial that an employer considers the following risks in asking employees to turn off their apps:

• Employees may believe that they are being denied the opportunity to protect both themselves and their colleagues;
• Employee absence levels will rise if there is a COVID-19 outbreak in the workplace;
• Employers could be in breach of their health and safety obligations; and
• Some employees that are considered to be vulnerable or are at a higher risk as a result of a protected characteristic may raise discrimination concerns/claims.

We suggest that employers considering this step should take specific advice.

2. Does an employee have to self-isolate if they have been “pinged” by the app?

It is important to note that the NHS COVID-19 app is different to the NHS Test and Trace. In accordance with the Coronavirus Regulations in force in England and Wales, there is only a legal obligation for close contacts to self-isolate where they have been notified directly by NHS Test and Trace and not where they receive a notification from the NHS COVID-19 app.

However, having said this, Government advice remains that those who have been notified by the app that they need to self-isolate should do so.

If an employer requests or demands that an employee who has been “pinged” by the app to self-isolate to return to work, they run the risk of breaching their duty of care towards their employees. Employers in this situation should also consider their health and safety obligations and the fact that they could be putting other employees in the workplace at risk of catching COVID-19.

If you would like more information about any of the issues raised in this article or on any other aspect of employment law, please contact us on 029 2034 5511 or at employment@berrysmith.com.