As lockdown measures continue to ease across the UK, more employees will be returning to their workplaces. Employers will therefore have a duty to protect their employees’ health and safety and to take appropriate measures to make the workplace as “COVID secure”, as is reasonably practicable. Simon Bellard, HR Consultant, discusses what employers should be aware of when considering making COVID-19 testing a requirement in the workplace.
A common question I have been asked recently is whether an employer can, or should, require employees to take COVID-19 tests as part of their updated health and safety measures.
Currently, anyone with symptoms of COVID-19 can access a test for Coronavirus through the NHS track and trace system. However, there is no Government guidance in place that recommends or requires employers to carry out testing on employees, either on a one-off basis when they return to the workplace or as part of any routine testing programme. As such, employers who want to test employees who are not displaying symptoms for coronavirus will need to source and pay for the tests privately.
Should COVID-19 Testing be a Requirement for Employees?
Employers may wish to implement a testing programme for a number of reasons, some of which could include reducing the risk of an outbreak of coronavirus in their workforce and to minimise disruption as much as possible. However, there may need to be a balance between the employer’s legitimate interests in protecting its business and the health and safety of its employees, as well as the personal interests of those employees.
It has been well documented that COVID-19 testing can be uncomfortable and, in some cases, painful and intrusive. Some employees, therefore, may find a requirement to be tested too invasive, some may even see it as unnecessary and an infringement on their privacy.
Where an employee is showing symptoms of coronavirus, it may be reasonable to require that employee to be tested for COVID-19, where the purpose is to protect the health and safety of the workforce. If the employee were to refuse to be tested, the employer may be justified in taking disciplinary action.
What if Employees are not Showing Symptoms?
The situation becomes more complicated when employees are not exhibiting symptoms. A reasonable employee is likely to agree to be tested if there is a clear and rational need for it. However, where employees do not consent to being tested, the question is whether a requirement to be tested can be imposed through a reasonable management instruction. This will depend on the circumstances of the particular employer and whether the risk of COVID-19 can be managed by other means.
Where the risk can be managed through, for example, social distancing, remote home working or other COVID-19 secure measures, it is more likely to be unreasonable to require an employee to be tested.
Situations where employees are required to work in close proximity because of the nature of their work – so social distancing and other measures are not possible – a requirement to take a test may be reasonable to pick up cases as early as possible.
As I have already stated, if circumstances make testing necessary and proportionate, an employer could consider taking disciplinary action against employees who refuse to be tested. However, the employer should ensure they consider the reasons why the employee refused prior to any disciplinary action being taken.
If testing is not necessary or proportionate because the employer’s health and safety obligations can be met through other means, employers would be well advised not to take disciplinary action against employees who refuse. Taking such action could bring the risk of constructive unfair dismissal claims if the employee were to resign, or unfair dismissal claims if the employee where to be dismissed. So, if there are valid and legitimate reasons why an employee refuses, taking disciplinary action could well be a risky strategy.
What should Employers be aware of?
- Data Protection
Employers should be mindful of their obligations under the General Data Protection Regulation (GDPR) and Data Protection Act 2018. Health information is special category data and, as such, employers should ensure they meet the necessary conditions for processing it. The fact that an employee has consented to being tested, or to the information being processed, will not of itself be sufficient. Further information on the recording of data can be found on the ICO website.
- Discrimination Issues
Targeting specific employees for testing who may be considered at higher risk of contracting Coronavirus or experiencing more severe symptoms may give rise to the risk of discrimination claims, particularly if other employees, who are not considered higher risk, are not required to be tested.
Contrary to this, a requirement for all employees to be tested could disproportionately affect employees in protected groups. Therefore, employers should ensure that their approach to testing is fair and that any potential discrimination can be justified as a proportionate means of achieving a legitimate aim.
As you can see, compulsory testing for COVID-19 raises a number of issues. Employers therefore need to think these through carefully before considering any testing requirements, particularly if they wish to implement regular testing for employees without symptoms.