Test & Protect: Considerations for your business

This Q&A touches on some of the most FAQ in relation to people management by Scottish businesses.

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6 min read

With the Scottish Government’s relaxation of lockdown measures, many businesses throughout the country have returned to trading; restaurants, bars, cafes, accommodation providers, hairdressers, therapists. And, for all, the working environment is not what it was before COVID-19. Social distancing measures and Test and Protect protocols have a number of implications for the way we do business and engage with customers.

What is Test and Protect? And, what does it mean for my business?

Test and Protect is Scotland’s way of putting into practice the test, trace, isolate and support strategy. The aim of this scheme is to stop the spread of Coronavirus in the community. Cases of the virus will be detected through testing and then people who have been in close contact with someone who has the virus will be contacted and asked to self-isolate.

Employers will be expected to put policies in place to support employees who have been infected by the virus or have been told to self-isolate. This policy may cause some disruption to normal staffing as there may be an increase in the levels of sickness absence.

What action can employers take to be prepared for the impact of Test and Protect at work?

Employers should update their sickness absence policy to ensure that the procedures are clear for staff on what they should do if they develop symptoms of COVID-19, test positive or are told to self-isolate. This policy should be communicated to all employees.

Some sickness absence policies have trigger points where employees can be issued with disciplinary warnings if their absence levels are high. Employers should be clear with staff that these policies do not apply to absence which is linked to COVID-19 and employees must not try and come to work if they are suffering from symptoms or have been told to self-isolate.

In order to minimise the risk of a large number of staff being in close contact with an employee who has tested positive for COVID-19, the employer may consider:

  • Keeping working from home in place where this is possible
  • Specific tasks that can be done from home if employees are told to self-isolate
  • Asking employees not to car share to come to work
  • Ensuring employees consistently observe health and safety guidance
  • Staggering start and finish times or organising working patterns to avoid having all staff in work at the same time
  • Allocating outside space for breaks rather than indoor canteen facilities

Employers may also consider having a bank of casual workers who may be able to work at short notice if a number of staff are told they need to self-isolate.

What should employees be paid when they are off sick or told to self-isolate?

If employees have symptoms of COVD-19 and test positive, their absence will be classed as sickness absence. The pay individual employees are entitled to will be detailed in the contract of employment. As a minimum if an employee earns over the lower earnings limit the employee will be entitled to Statutory Sick Pay.

If an employee has been in close contact with someone who has tested positive and the employee is told to self-isolate then employers will have a few options. If the employee can work from home, then employers would be encouraged to put this in place and employees would be paid their normal rate/salary for this time. If working from home is not an option, then the employee would be on sick leave. Payment during this time will be in line with their contract of employment.

What should casual workers or zero hours employees be paid if they are told they need to self-isolate?

The pay these employees receive will be in line with the detail in their contract of employment.

If there is no company sick pay scheme in place, then some will be eligible for Statutory Sick Pay and some will not. Qualification for SSP is based on average weekly earnings. The average weekly earnings must be over £120 per week this is known as the lower earnings limit.

What are the data protection implications of gathering employee’s personal information on which employees have been absent with the COVID-19 and which employees have been told to self isolate?

Data protection law does not prevent employers from gathering this data as the purpose will be to keep staff and the general public safe. Employers must ensure that if they are gathering data in relation to employee’s health that they can show that they have a legitimate reason for doing so. Data should not be held for any longer than necessary and organisations should have controls in place to store data securely and to only provide access to specific staff who are involved in processing that data.

Employers should be clear with employees on what personal information they will hold, why they will hold the data, for how long, and who they will share it with. This may involve updating the Employee Privacy Notice.

What happens if a large number of employees from the same company are contacted by the test and protect service?

It will be important for employers to have a contingency plan in place should this happen to their workforce. The simplest way to deal with this is to move staff out of the workplace and ask them to work from home. If this is not possible then employees must be allowed to stay at home and not come to work.

Having specific groups of staff working on different shifts may help to ensure that the business can still operate as not all staff will have been in contact with each other, so some will still be able to attend work. Having a bank of casual workers who can provide cover at short notice may also be a wise contingency plan.

What should employers do if an employee does not comply with social distancing or hygiene measures at work?

In the first instance it may be appropriate to deal with this matter informally and communicate the importance of following the procedures. Any decision to take formal disciplinary action will be based on the scale of the breach or continued refusal to comply with the procedures. If disciplinary action is appropriate then the employer should follow its usual disciplinary procedure, carry out an investigation and give the employee a chance to explain what happened. After following a fair process an employer may be justified in dismissing an employee who has failed to follow procedures to reduce the spread of COVID-19 where there is repeated refusal to follow procedures or there is a one-off failure which is particularly serious.

What about my customers?

Businesses operating in the tourism and hospitality sectors are also advised by the Scottish Government to collect customers data, in order to follow the Test and Protect protocol. More information on what data to collect, how to store it and when it needs to be shared and acted upon can be found on the Scottish Government’s website.

How should business owners manage communication with employees during the COVID-19 pandemic?

There are a number of reasons why employees may not have been at their normal place of work during the pandemic or their work has been disrupted for example:

  • Those who have been working throughout the lockdown at home
  • Employees who have been on furlough leave as there was a reduction in work
  • Those on furlough leave because they were shielding
  • Those who were ill with COVID-19 symptoms or were self-isolating
  • Those with childcare challenges due to schools being closed

Work provides us with structure and routine and an opportunity for social interaction. When this is taken away there is a significant risk of a negative impact on mental health. Employers should consider ways to maintain good communication with employees whilst work is disrupted. This may involve having virtual team meetings or social events such as quizzes, building in time for regular check-ins with employees at home, or weekly email communications with updates on what is happening at work.

Employers should communicate plans for returning to work as lockdown is eased and any changes in working arrangements or procedures which may be implemented. After a long period of time at home, employees may have concerns about returning to work so employers should take time to listen to individual concerns and communicate the new ways of working to help manage the transition.

Some employees may need additional support if they are pregnant, for example, or if they have been shielding because they are clinically vulnerable. Open communication should be encouraged with the aim of agreeing on a plan to facilitate a return to work.

Do not underestimate the value of regular communication in times of change or uncertainty.

For more guidance on communicating with your workforce and managing mental and emotional wellbeing, visit the HR section on our Coronavirus business support hub.

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