United Kingdom: COVID-19 - Employer criminal offences in England

In brief

In this alert we summarise the principal employment-related criminal offences for which employers and company officers can currently be liable arising from COVID-19 restrictions in England. Employers should pay particular attention to the requirement to not knowingly allow a worker to breach mandatory a self-isolation requirement for work purposes.


Some offences apply across all sectors of the economy. Others only apply in a limited number of sectors.

All sectors:

  • Allowing a breach of a self-isolation requirement (including a travel quarantine requirement).
  • Agency worker arrangements: failing to pass on information about a self-isolation requirement.

Hospitality (on-site service) / some leisure and tourism / close physical contact services / some community premises:

  • Failing to display an NHS Test and Trace QR code for staff.
  • Failing to collect, or retain, mandatory staff data for tracing purposes. 
  • Failing to take reasonable steps to prevent entry to premises by member of staff who hasn't scanned QR code or provided mandatory staff details. 

Hospitality (on-site service), and most retail and entertainment premises (if indoors):

  • Failing to display a notice reminding staff of their legal obligation to wear a face covering. 

In all cases, the employers will generally be offered the chance to pay a fixed penalty fine, although the employer is free to refuse and contest the matter in the courts.

For all of the above offences, company directors, company secretaries and managers can also be personally liable in certain circumstances.

We cover each of the offences in more detail below. The information is correct as at 7 October 2020, but readers may be aware that the restrictions are frequently changed, sometimes at short notice. This article does not deal with additional offences that might apply in areas subject to local lockdown restrictions. Please reach out to your usual Baker McKenzie contact if you are in any doubt about whether any offences might apply to your organisation.

Allowing a breach of a self-isolation requirement 

(Applies to all sectors)

People in England are required by law to self-isolate in the following circumstances:

  • They have tested positive for COVID-19 (10 days).
  • They have been notified by NHS Test and Trace that they have been in close contact with someone who has tested positive for COVID-19 (14 days). (This does not include a notification from the NHS Covid-19 app.)

In a case where symptoms were reported, the 10 or 14 day period starts from the later of the reported symptom onset date or the date 5 days before the positive test result. In an asymptomatic case the period starts from the date of the test.

  • They are subject to travel quarantine, i.e., they have entered the UK from abroad, unless they benefit from an exemption, such as one of the "travel corridors" (14 days). 

Failure to comply renders the individual liable to a fine. In tandem with the above rules, the government has made it unlawful for an employer to allow a breach of a self-isolation requirement by one of its workers (including agency workers). The offence occurs if:

  • the employer is aware that the worker is required to be self-isolating;
  • the worker attends anywhere other than the location at which they should be self-isolating; 
  • the attendance is for any purpose related to the worker's employment; and
  • the employer knowingly allowed the attendance.

The worker is obliged by law to tell their employer if they are required to self-isolate. There is a £50 fixed penalty for failing to do so.

These rules will obviously land an employer in hot water if, for example, they require an employee to come to the office and they know the employee should be self-isolating. But the rules go further: the employer could be liable if it turned a blind eye to colleagues meeting up to discuss work when one of them should be self-isolating. Work drinks could also be risky. (Inasmuch as Covid-restrictions still allow small groups to meet in pubs.) Every Christmas employers are reminded that office drinks / parties can count as an extension of the workplace. A similarly broad interpretation might be adopted here, meaning that an employer might be at risk if, for example, it knew that colleagues were meeting for after-work drinks when one or more of them should be self-isolating. 

In either the work meeting or work drinks examples (or similar situations), the employer should issue a direct instruction forbidding it, keeping a written record. More generally, employers should consider communicating to employees that the employer expressly forbids them from undertaking any work-related activity away from their home for the duration of their mandatory self-isolation. The communication should also state that breach of this instruction could be a disciplinary offence (possibly gross misconduct).

Employers will generally be offered the option of paying a fixed penalty for a suspected offence, although they can reject the offer and contest the matter in the courts. The fixed penalty is:

  • 1st offence: £1,000
  • 2nd offence : £2,000
  • 3rd offence: £4,000
  • 4th and subsequent offences: £10,000.

In addition to the mandatory self-isolation requirements, government guidance tells individuals to self-isolate in other circumstances too: (A) If they have symptoms (10 days); (B) If they live in a household with a symptomatic person (14 days); (C) In advance of a medical procedure (14 days). Clearly, those in categories A and B would become subject to mandatory self-isolation if the symptomatic member of the household went on to test positive. 

Employers are not directly subject to criminal penalties for allowing or encouraging breaches of these non-mandatory self-isolation categories. However, doing so could lead to Health and Safety Executive enforcement action on the basis that allowing people to come to the workplace when they ought to self-isolate creates an unsafe workplace. It could also lead to individual employment claims, for example from colleagues who feel that they have been placed at risk by working with someone who ought to have self-isolated. 

Agency worker arrangements: failing to pass on information about self-isolation

(Applies to all sectors)

If an agency worker becomes subject to a requirement to self-isolate, they have to inform their employer (if there is one), the agency or the client where they are working. Whoever receives that notification has to pass it on to the other parties; e.g. if the client receives the notification, it has to pass it on to the agency and the employer (if there is one). 

Failing to display an NHS Test and Trace QR code

(Applies to hospitality (on-site service) / some leisure and tourism / close physical contact services / some community premises.)

The legal obligation is solely to display the QR code, with the aim that the member of staff can scan it when entering the premises. There is no requirement to force the member of staff to scan the code. However, if they do not scan it, the employer has a legal duty to record mandatory data (see next offence).

The government guidance on Maintaining records of staff, customers and visitors to support NHS Test and Trace treats the obligation to display an NHS Test and Trace QR code as only applying for use by customers and visitors. The guidance assumes that employers will have staff records meeting the mandatory data requirements. Nevertheless, the regulations do require the QR code to be displayed so that staff can also scan it. If staff have a separate entrance to customers, it is therefore advisable to display a QR code at that entrance. 

A QR code can be generated via this link.

The fixed penalty is:

  • 1st offence: £500 (if paid within 14 days) / £1,000
  • 2nd offence : £2,000
  • 3rd offence: £4,000
  • 4th and subsequent offences: £10,000.

For these purposes, you also count any fixed penalty notices under certain other regulations, such as the requirement to display face covering information. However, it is not cumulative with the obligation to not knowingly allow a breach of self-isolation rules.

Failing to collect, or retain, mandatory staff data for tracing purposes

(Applies to hospitality (on-site service) / some leisure and tourism / close physical contact services / some community premises.)

This offence will only apply if the member of staff hasn't scanned the QR code. However, as mentioned above, the government guidance assumes that employers will have the required data in any event, given that it is very basic. Employers should of course ensure the government assumption is correct for their organisation. The mandatory data are: name, date and time of entry, and telephone number (or, failing that an email address; and if no email, a postal address.) 

The details have to be retained for 21 days and must be disclosed to the government or a public health officer on request.

The fixed penalty is the same as for the offence of failing to display the NHS Test and Trace QR code.

Failing to take reasonable steps to prevent entry to premises by member of staff who hasn't scanned QR code or provided mandatory staff details

(Applies to hospitality (on-site service) / some leisure and tourism / close physical contact services / some community premises.)

The risk of this offence arising seems slim, given that employers are likely to have the mandatory staff details in any event.

The fixed penalty is the same as for the offence of failing to display the NHS Test and Trace QR code.

Failing to display a notice reminding staff of their legal obligation to wear a face covering

(Hospitality (on-site service), and most retail and entertainment premises (if indoors).)

Staff in affected sectors are required to wear face coverings. Employers must display a sign reminding them of this in a conspicuous location. 

The fixed penalty is the same as for the offence of failing to display the NHS Test and Trace QR code.

Personal liability

Company directors, company secretaries and managers can be personally liable for any of the above offences if it was committed with their consent or connivance, or if it was attributable to neglect on their part.

Consent and connivance require deliberate intent. However, neglect could be given a broad interpretation. Similarly, "managers" could capture a large number of people, even in junior management positions. 


Contact Information
Rachel Farr
Knowledge Lawyer
London
rachel.farr@bakermckenzie.com
Mandy Li
Knowledge Lawyer
London
mandy.li@bakermckenzie.com

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