While there has been much debate about whether an employer can insist that employees download and use the NHS Covid-19 contract tracing app while in the workplace, I was very interested to read this article in the Guardian about a union receiving reports from teachers who allege that they have been told to disable the government's Covid test and trace system while in school and to disregard notifications in order to reduce the number of staff required to self-isolate and subsequently being absent from work.

This raises two questions.

1) Whether an employer can instruct employees not to activate and use the app while in the workplace; and

2) what the implications are of telling staff to disregard notifications?

Government guidance on the use of the NHS Covid-19 app in education and childcare settings is very clear about considering how the app relates to an education provider setting's mobile phone policies, particularly in relation to students. The guidance also states that it is necessary for settings also to discuss with staff their own use of the app, including pausing it if there are periods of time when they will not be near their phone, and appropriate processes to follow should they receive a notification themselves. "Settings might wish to recommend that staff download and use the app, if they think this would be beneficial."

Government guidance provides that the contact tracing feature of the app may be paused when an individual is putting their mobile telephone in storage, such as in a work locker, when the person won't have their phone on them (to avoid misidentifying close contacts), when they are fully protected behind Perspex or are wearing medical-grade PPE. However, the NASUWT claims heads are asking staff to disable the app the whole time they are in school. 

To the untrained eye, this might appear acceptable and also business savvy. Employers, including schools and academies are unlikely to be criticised for suggesting that employees pause the contact tracing feature in limited circumstances in the workplace or even request that phones stay in lockers for the day if that is what your setting's policies provides for. 

Looking at the second question, if an employer decides to restrict the use of the app more widely and tells staff to disregard notifications, what are risks? 

With my employment law hat on:

1) employees may be concerned that they are being denied an opportunity to protect themselves and their colleagues.

2) if there is a Covid-19 outbreak in the workplace/at school, employee absence levels will increase (and possibly more so than if staff had self-isolated in the first place). That is likely to have a more detrimental impact on staff and pupil absences. 

3) there is a risk of indirect discrimination claims from those employees who are at higher risk due to having a protected characteristic (disability and being of BAME origin are possible examples due to being more likely to suffer adverse effects from Covid) if they can argue that a requirement not to use or activate the app in the workplace amounted to a provision, criterion or practice and the education or setting is unable to objectively justify it; and

4) there are also potential health and safety law implications and employers should familiarise themselves with their obligations. For more information, two of my colleagues have recorded an interesting podcast on the risk of health and safety detriment claims and how to manage them. Please click here for more information:

Given that the government's guidance on the NHS Test and Trace in the workplace stipulates that employers have a vital role in encouraging workers to heed notifications to self-isolate and supporting them when in isolation, it then seems questionable for an employer to try to undermine the functioning of the app to minimise its own absence levels and is somewhat reckless given the potential risks outlined above. On first glance, such a practice may appear business savvy but it in my view does not come without long term significant risks.