The 'NHS Test and Trace Service': What does this mean for employers and staffing suppliers?

Employers and staffing suppliers will also need to understand and carefully manage their role in the actual T&T process, taking on board the government guidance on how T&T works and the accompanying "workplace guidance".

There is no mention in the workplace guidance of the role of staffing suppliers in the T&T process. They will, nonetheless, need to discuss the process with their clients. Regulation 20 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 requires employment businesses to “take all such steps as are reasonably practicable, to ensure that the work-seeker and the hirer are each aware of any requirements imposed by law… which must be satisfied by the hirer or the work-seeker to enable the work-seeker to work for the hirer in the position which the hirer seeks to fill” and, in relation to health and safety, to have “made all such enquiries, as are reasonably practicable, to ensure that it would not be detrimental to the interests of the work-seeker or the hirer for the work-seeker to work for the hirer in the position which the hirer seeks to fill”.

In the context of T&T this will require staffing suppliers to obtain details of their clients' T&T processes and to pass key information to workers.

Regulation 20 also requires staffing suppliers to pass on and update any information to the hirer regarding a worker’s suitability to work in the role. This raises a question of how far, if at all, a staffing supplier needs to get involved in or otherwise act as a conduit for communicating T&T-related information. At the very least the staffing supplier should inform supplied workers to whom they should speak if they have any concerns or questions regarding T&T requirements. It would also be sensible to keep a record of discussions with clients around T&T process and, in particular, what the client will be responsible for and what the staffing supplier will be expected to do to assist implementation of the T&T process. For example, confirm that the client will include all agency workers (as well as its own employees) in briefings and updates about T&T and that supplied workers will be expected to notify any concerns or reports of close contact etc directly to the client.

T&T 'supplements' existing risk mitigation measures.

T&T should be used in conjunction with the existing health and safety workplace guidance for an employer's sector. It is not a green card to bring all employees back into the workplace; "every reasonable effort to enable working from home" should be considered "as a first option".

Remind employees of their personal responsibility in the fight against COVID-19

T&T emphasises the importance of an employee notifying their employer immediately (and self-isolating) if they display any of the recognised COVID-19 symptoms (high temperature, new continuous cough or a loss or change in sense of smell or taste) and from now, if they have been 'traced' as having had contact with someone who has tested positive. Employers must then play their part in supporting employees in not coming into the workplace for the appropriate self-isolation period and ensuring that either they work from home or take annual leave (and are paid) or do not work and are paid statutory sick pay (SSP).

Talk to your employees about T&T

Employers should talk to employees about their obligations under T&T. A supporting policy will be helpful.

• Be clear who is a "close contact" and the name of an individual in the company who can provide T&T with any contact details which may be needed or who the employee can turn to for support.
• Remind employees to inform the company immediately if their test result is positive allowing the company to pre-empt any contact and notifications which will potentially be made to co-workers from T&T.

Encouraging employees to identify a close contact which has arisen due to a breach of workplace social distancing or related health & safety rules will need to be handled with care. Employees who refrain from doing so through fear of repercussions may be putting the workplace at risk of infection and ultimately a Public Health inspection.

Actively inform "close contacts" who are co-workers, clients, suppliers or business visitors & maintain confidence

Many employers have put in place processes to notify other employees where a colleague has tested positive or is displaying COVID-19 symptoms as part of their health & safety response. T&T guidance suggests individuals pre-warn close contacts that they may receive a formal notification to self-isolate from T&T (where the individual subsequently tests positive) and "where these are co-workers may ask their employer to do so".

Conversations with co-workers will need to be handled sensitively; particularly against the backdrop of 14 days automatic self-isolation (potentially on statutory sick pay). Where an employee's result comes back positive, the potential for personal recriminations and potential discrimination (e.g. where the symptomatic employee is BAME) will inevitably heighten.

Pending the test result, employers will also need to ensure they take all recommended steps to protect workers. There is no legal obligation for co-workers at this point to self-isolate (unless they have been in contact with someone who has tested positively). Maintaining confidence in workplace health and safety and protecting those most at risk will be key.

Providing details of co-workers to T&T

Guidance states that employees will be asked if they "work in" a setting "with other people". It may be that a contract tracer will therefore contact an employer directly and request, for example, team details to provide to T&T. Whilst the guidance makes clear that any information given "will be handled in strict confidence and will only be kept an used in line with data protection laws", employers will need to ensure that they comply with their employment and GDPR obligations towards co-workers before sharing any personal data for these purposes. Privacy notices will require amendment to cover this scenario.

Where employees are asked to provide details of co-workers directly, they should be reminded not to share personal details of co-workers, without first speaking to their employer given the potential employment law and GDPR repercussions. Employees should be clear who they can turn to for support within the company.

Helping workers notified by T&T to self-isolate

Where workers received a formal notification from T&T to self-isolate, the workplace guidance emphasises that employers should:

• not ask these workers to attend the workplace.
• continue to communicate with those workers and provide support.
• allow employees to work from home if they remain well and it is practicable to so. Is alternative work available?
• pay SSP where home work is not possible (the SSP regulations have been amended to capture these workers). An employee should be given the option to use their paid leave days if they prefer.

The guidance makes clear that the T&T notification can be used as evidence for SSP purposes.

Take proactive steps to minimise the risk of COVID-19 and respond to staff concerns

Employers should proactively take steps to check that their existing workplace measures are adequate and that they have a process for identifying any hotspots within the company. Multiple cases of coronavirus in a workplace may lead to T&T escalating the situation to the local authority or Public Health England.

It is important that managers are clear on who to contact for guidance where any requests or concerns from staff are raised. The guidance expressly directs "workers who think the contacts that have triggered these notifications are workplace contacts" to "ask their employer to consider what further mitigating actions could be taken to reduce the risk of COVID-19". Aside from any legal claims, employers may also face employee relations issues and associated reputational concerns where potential breaches of employment or health & safety obligations are raised and not adequately dealt with.

Next steps

T&T raises significant considerations for employers, already navigating complex health and safety guidelines for re-opening their workplaces and managing the economic challenges the COVID-19 emergency has dealt. The current service is distinct from the much publicised NHS COVID-19 app, currently being trialled; however many businesses are also considering whether it will be a 'reasonable instruction' to require employees to download the app when it is officially launched, as part of their fight against the spread of COVID-19.

With employee relations and protecting employer brand critical, employers will need to carefully consider the steps they take in responding to T&T; and as the guidance emphasises "although this may seem disruptive for businesses, it is less disruptive than an outbreak of COVID-19 in the workplace will be, and far less disruptive than periods in lockdown".