Employees can refuse to take track and trace sick leave #trackandtrace

Matt Hancock’s assertion of civic duty has no bearing on the centuries old legal bargain:  the employee presents as ready and willing to work and, in return, the employer pays his wages.

As he candidly states, he has not changed the law yet but only threatens to do so.  So what is the legal position employees after receiving a call from a government clinicians ‘ordering’ them to go home for 14 days?  Employees need only say this to their employer:

“The law may now deem me incapable of work for purposes of claiming entitlement to Statutory Sick Pay, but it does not deem me to be incapable of work for you.  I am not ill.  I am not showing any symptoms of Coronavirus.  I am willing and able to work and, if you insist on sending me home, I will expect full pay and benefits under my contract as normal.”

Claims may be many and messy

Of course, nothing is so simple.  The legal issue may eventually turn on whether and to what extent there has in fact been a lawful ‘order’ by a public health officer and assessment by a registered healthcare professional, all of which involves the officer making an individual assessment of what is proportionate and necessary.  It seems unlikely, however, to be possible is most cases to make any such assessment unless by reference to rigid instructions which have yet to be published or justified in any court.  Meanwhile, confusion between what is law and what is encouragement, and fear of prosecution or litigation, whether from public health officers or employees, will determine behaviours.

If an employer agrees to full pay for duration of the isolation, in many cases there will be no issue.  If the employee receiving the clinician’s call asks or agrees to go home without demanding full pay, the employer wont’ be able to object but may at least only need to pay SSP that can then be recouped.

However, there will be cases where employees may suffer losses rather greater than a couple of weeks pay if they go home.  For example, targets and bonuses may be missed.  There may well be pregnant employees who do not accept they are in danger in the workplace and do not wish to isolate but feel they are being put under particular pressure to do so because of their pregnancy.

In any cases where an employee is not content with what is proposed by the employer, they may well seek expert advice on how to resist track and trace isolation and/or whether to let the employer unwittingly set themselves up for a breach of contract and/or unfair dismissal and/or discrimination claim.  When push comes to shove, it may a brave employee who goes so far as to resign from employment to claim constructive dismissal against an employer faced with responding to orders, but contractual claims to pay may stand alone and be of significant value.

Civil rights and business disruption

As another practical issue, there must be a good chance of some smaller businesses suffering significant losses if a large section or even all of a workforce receive these ‘orders’.  Contracts with third parties may be breached as a result and with serious financial impact.  What happens with repeat notices? What happens where reports to the authorities are suspected to be false or malicious?

Perhaps one other reason the government has not sought to change the law yet is that so far there has been some degree of consent and cooperation.  Whether you agree with government policies or not, the threatened law change would be the clearest instruction of forced imprisonment.  Along with privacy issues and GDPR of the track and trace app itself, this could be added to the long list of complaints in the Judicial Review application soon to be heard before the courts.  There could be potential for many businesses that get in the Judicial Review queue.  These certainly are unprecedented times, for one reason or another.

Employees and employers concerned, confused or needing advice need only get in touch.

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