Can employers make contact tracing apps obligatory?

Woodfines Solicitors

29th October 2020

Since the beginning of the coronavirus pandemic, the government’s top scientific advisers have touted contact tracing as one of the best methods of controlling the spread of infection.

Now, with the release of test and trace apps such as the NHS COVID-19 app, smartphone users can be informed if they’ve come into close proximity with somebody who later registers a positive test result.

As one of our best chances of keeping the virus at bay until a vaccine is found, it’s understandable that employers will want their staff to use such apps in the workplace – but can they force them to?

A reasonable request?

On the NHS website, it clearly states that the use of the app is voluntary and employers are not allowed to make their employees use it. Employers can encourage their staff to download and use the app, but a more strongly worded request may be entering murky territory. Firstly, a business would need to consider whether it would constitute a reasonable management request. According to acas, the government-funded body that advises employers and employees on work-related matters, a reasonable request might include anything from answering a colleague’s phone while they are away from their desk to helping unload a delivery.

In order to judge whether requiring staff to download the app is reasonable, an employer will need to assess their workplace environment, including the current risk of coronavirus infection and the extent to which they believe a contact tracing app will help keep their workforce and other parties safe.

Much to consider

Even if an employer’s insistence on using the app at work were to be judged a reasonable management request, what about outside of working hours? For the app to be effective, it should arguably be switched on at all times, but requesting that staff do so may be considered an infringement of employees’ privacy.

Furthermore, even if employees did use the app consistently, for the system to work effectively they would still have to inform their employer if they received an alert regarding potential exposure to an infected person. Whether or not they are likely to do that could depend on the employer’s approach to pay for employees obliged to self-isolate. In order to maximise the system’s effectiveness, employers should clearly communicate their sickness policy to staff and clarify the procedure to be followed in the event of an employee being exposed to the virus.

The practicalities

While instructing staff to download and use the app may seem like the best way of keeping the workforce safe, it might not always be practical. While smartphone use is increasing all the time, with 79% of UK adults owning a smartphone in 2019[1], this still means a fifth of the population may be unable to download the app – while others still may have older smartphones that are incompatible. You could perhaps resolve this by providing the staff member with a work smartphone, but it would be very difficult to check whether they were using it at home.

Likewise, if the app was downloaded on an employee’s personal phone, it would be hard to verify a) whether or not it has been actually installed and b) whether it is active and scanning at any given time. Asking employees to hand over their phones for checking could, again, be viewed as an invasion of privacy.

Unsure? Ask the experts

The COVID-19 pandemic has hugely complicated the HR landscape and it’s understandable that employers might be confused about what they can and can’t do, and how best to keep their workforce safe and productive. If in doubt, please get in touch with our experts at employmentlaw@woodfines.co.uk.

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