Test and trace system could lead to wave of employment tribunals, lawyers warn

Lawyers are warning that the new test and trace system could lead to a wave of employment tribunals if bosses ask workers to ignore isolation guidance.

Thousands of contact tracers are making their first phone calls on Thursday to track down people who will be told to self-isolate under new schemes being launched in England and Scotland.

Tracers will text, email or call people who test positive with coronavirus and ask who they have had contact with.

Any of those contacts who are deemed at risk of infection will be told to isolate for 14 days, even if they are not sick. Meanwhile, people who have already had Covid-19 will also be asked to self-isolate.

Health Secretary Matt Hancock said he is confident that the "vast majority of people" would participate in the voluntary system.

"In this war on the virus, ultimately we are all on the same side and we've all got a part that we can play," Mr Hancock said.

During the daily coronavirus briefing on Wednesday, he said that it is the public's "civic duty" to follow the instructions of the NHS Test and Trace team.

"This will be voluntary at first because we trust everyone to do the right thing. But we can quickly make it mandatory if that's what it takes," he added.

The aim of the system is to lift blanket lockdown restrictions and move towards more localised, targeted measures.

However employment lawyers have warned that some employers may threaten their workers’ job security which could lead to people breaking the system, as well as an “upsurge” in employment tribunal claims

“I think there’s going to be an upsurge in potential claims,” Emilie Cole, partner and employment lawyer at Irwin Mitchell, said.

“Another issue is that everyone has the right to a safe place of work and if you raise health and safety concerns about that and you’re dismissed or subjected to detrimental treatment, you have a claim in the employment tribunal.

“I think there’s a potential for a lot of claims, but the reality is, do people have the stomach to bring them to a tribunal given their personal circumstances? If they have no other option, then they will.

“I’m sure a lot of unionised companies will have widespread action. It’s all going to kick off after the furlough scheme starts winding down and the money runs out. There will be a lot of redundancies when that ends and it’s just prepping for that at the moment.”

Jahad Rahman, partner at Rahman Lowe Solicitors, added: “I think there’s going to be a surge in employment tribunal claims.

“We have already had a significant number of redundancies and TUPE transfers, a lot of companies trying to sell liabilities to new entities, and some are going bust. And it’s having an impact on the economy and significant increase in the number of claims."

TUPE regulations preserve employees’ terms and conditions when a business or undertaking, or part of one, is transferred to a new employer. 

Mr Rahman added: “The economy will not be in a nice place once this whole thing turns around. And then there’s the data protection issues to consider, as well as how all the GDPR will be sorted, I think it's still very early days but I see a lot of litigation arising from this.”

The 25,000 tracers working for England's NHS Test and Trace team began by contacting the 2,013 people who tested positive for the virus on Wednesday.

An app to automatically alert people if they have been in contact with someone who has tested positive for covid-19 is still being trialled on the Isle of Wight. However the government hopes to have that system up-and-running in England by next month.