Contributed by Tori Shepherd, Employment Law Solicitor at Aaron & Partners (www.aaronandpartners.com)
WHAT FACTORS SHOULD EMPLOYERS CONSIDER BEFORE DECIDING TO TEST EMPLOYEES?
The guidance states that before deciding to test employees, employers are advised to be clear on:
•whether the focus is on staff with/without symptoms;
• how often employees will be tested;
• the facilities for where the testing will be carried out;
• which test should be used (virus/antibody);
• what the arrangements are for any employee who does not wish to be tested;
• how the test results will be used (including policy considerations such as equality/diversity and data protection for sensitive health information, and what effect the results will have upon employees in relation to self-isolation and absence from work);
• the compatibility of the programme with the employer’s legal obligations (including health and safety, equality, data protection and employment law); and
• the affordability of implementing a testing programme.
HOW OFTEN SHOULD EMPLOYEES BE TESTED?
There is not yet a clinically defined number of times that an individual should be tested within a given timeframe, however this advice could change.The current ICO guidance on workplace testing states that the frequency of testing employees and whether it is necessary will depend on a number of factors, including but not limited to:
• the safety measures that the organisation needs to put in place;
• therelevantsectorandanyspecificrequirementsorassociatedrisksforthe sector;
• the nature of the work being carried out;
which staff the testing whether the focus is
• the amount of contact employees/workers have with each other and/or clients/contractors/customers;
• the type of premises; and
• whether working from home is possible.
HOW SHOULD EMPLOYERS COMMUNICATE THEIR INTENTION TO TEST EMPLOYEES?
Employers must be transparent when communicating their intention to test employees and give clear information in order that employees know why testing is being implemented in addition to Government testing. Employers should also explain:
• whether the programme is voluntary or mandatory;
• explain any consequences should an employee decline testing;
• what happens after they receive their results
• where employees may seek advice on their rights; and
• how their data will be processed in line with GDPR and the Data Protection Act 2018.
The testing process for COVID-19 can be invasive and uncomfortable, requiring a swab to be taken from inside the nose and back of the throat. Many employees may willingly undertake testing to limit the risk of an outbreak in their workplace, but individual consent is required to conduct each test.
ARE THERE ANY CIRCUMSTANCES IN WHICH EMPLOYERS COULD ENFORCE COVID-19 TESTING?
Insisting on COVID-19 testing in the workplace will depend upon whether the employer could argue that there is reasonable, necessary, proportionate and proper cause to require the test to be obtained.
It may be that for some roles, where appropriate measures have been put in place and the employee has little to no “close contact” with others, it would be unreasonable to require them to have a test where they do not wish to. In such circumstances, doing so could be considered to be unreasonable or without proper cause and may amount to a breach of the implied duty of trust and confidence between the parties in the employment relationship, which may give rise to an employee resigning in response to that breach and bringing a claim for constructive dismissal.
For other roles which require the employee to have “close contact” with others, for example, in certain higher-risk sectors or more confined workspaces depending upon the nature of the work being carried out, it may be reasonable and justifiable to require employees to undergo workplace testing in order to ensure that the employer is complying with their duty of care to all staff, customers, etc. and legal/health and safety requirements. Employers should however still keep in mind the risk of discrimination in doing so.
IF AN EMPLOYEE REFUSED TO BE TESTED IN THE WORKPLACE FOR COVID-19, COULD DISCIPLINARY ACTION BE TAKEN AGAINST THEM?
If employers are able to justify a reasonable, necessary, proportionate and proper cause to require an employee to have a COVID-19 test as set out above, and they refuse without good reason (i.e. that doing so would be causing them to be treated unfavourably), disciplinary proceedings could be implemented for failure to follow a reasonable management instruction under the employer’s usual disciplinary procedure.
TIPS FOR EMPLOYERS:
• Continue to carry out risk assessments in line with government guidance. The need to introduce workplace testing may change, for example, if government guidance changes, or if there is an outbreak in the workplace and testing may be seen as an appropriate response to the outbreak.
• Consider whether COVID-19 testing in the workplace may be beneficial for the whole workforce or perhaps only for specific higher-risk roles.
• If COVID-19 testing in the workplace is implemented, be aware of risks of direct discrimination if only certain members of staff are selected which may be considered unfair or harmful treatment in respect of a protected characteristic, or indirect discrimination if a system of testing for all employees is operated and it would treat a particular member of staff unfavourably in relation to a protected characteristic.
• If an employee does not wish to carry out a test, explore their reasons for not wishing to do so and consider each case on its own merits.
• Be careful to ensure that employees who receive a positive test result are not treated differently to employees who do not. Avoid naming individuals and anonymise them where possible. Do not provide more information than is necessary to ensure compliance with Data Protection Regulations.
• Continue to comply with social distancing procedures in order to ensure that COVID-risk within the workplace is minimised.