Forcing Employees to Test for Covid-19

The Information Commissioner's Office (ICO) published guidance on workplace testing, which explains that, in order to be compliant with data protection law, employers must show their approach to testing is “reasonable, fair and proportionate to the circumstances”. To ascertain if this is the case, businesses should undertake a data protection impact statement taking into consideration:

• their organisation’s specific circumstances (including type of work undertaken and nature of their premises);
• the extent to which testing will contribute to a safe working environment; and
• whether alternative measures could be as effective in limiting transmission of Covid-19 (such as strict social distancing or working from home).

If there is good reason for testing, given the sensitive nature of the data collected, employers must process the data in accordance with the General Data Protection Regulations and inform staff on why and how they intend to use it.

However, the testing process for Covid-19 can be invasive and uncomfortable and individual consent is required to conduct each test. Employers cannot force employees to take a test.

Importance of communication

If an employer decides that it is necessary to test employees, ACAS has advised that this should be agreed with staff or the workplace’s recognised trade union.

The ICO has advised that employers should be “clear, open and honest” with employees. Communicating with staff to keep them informed about a testing programme and showing that their concerns and objections have been fairly considered, will be key in gaining employees support for a testing programme. By emphasising that testing is a necessary and proportionate means of limiting a Covid-19 outbreak in the workplace, which could result in its closure and threaten jobs, employees are also more likely to consent.

If a test is refused

Employers have a duty to protect the health and safety of their employees and it is therefore likely that they can reasonably instruct an employee exhibiting symptoms to be tested in accordance with Government guidance. If the employee tests positive, the employer will be alerted to the risk of transmission in the workplace and can take action to mitigate that risk. If the employee fails to follow the employer’s instruction to arrange a test, the employer may be justified in taking disciplinary action against them.

However, where an employee is not exhibiting symptoms, it may not be reasonable for the employer to require the employee to be tested. Whether testing is reasonable in these circumstances will require a consideration of the factors set out by the ICO.

Before taking disciplinary action for refusal to consent to testing, an employer should discuss the matter with the employee and consider the employee’s circumstances as individuals may have valid reasons for refusing to be tested. Employers must also be alert to the possibility that the requirement to be tested could disproportionately affect some protected groups, such as those with certain disabilities.

Advice

If you need assistance or advice on the contents of this article, please contact the Employment Team at Thackray Williams LLP 020 8290 0440 or email lisa.rothon@thackraywilliams.com