Testing times: can an employer require workers to undertake mandatory COVID-19 tests?
What are the options available to employers who wish to introduce mandatory testing?
The prevalence of COVID-19 in the general population is causing increasing operational difficulties for many employers due to high numbers of staff reporting sick or being required to self-isolate in line with government guidelines. As a result, employers are looking to increase so called ‘COVID-security’ of their premises by introducing regular mandatory COVID-19 testing for workers in order to protect the wider workforce, their families and ultimately the business which employs them.
Generally speaking, an employer cannot force an employee to submit to a COVID-19 test. What therefore, are the options available to employers who wish to introduce mandatory testing?
Effective communication with workers should always be the starting-point when seeking to introduce a new policy, particularly where it affects all staff. You should undertake a consultation process with all workers or, where applicable, a recognised trade union regarding the proposed policy and invite feedback from workers as to their perspective and suggestions. Consulting with the workforce in this way gives you an opportunity to explain the rationale and benefits to everyone of a mandatory testing regime and to encourage ‘buy-in’ from staff.
Any agreement reached should be put in writing in a policy document.
What if a worker refuses to be tested?
ACAS guidelines suggest that where a worker does not agree to being tested, you should listen to their concerns. It also stresses the importance of being flexible and trying where possible, to resolve any issues informally.
You should try, where possible to find alternatives to taking formal action. Could the worker be redeployed elsewhere in the organisation where they can work separately from colleagues? Could the worker safely carry out their role from home or be placed on furlough? You could also give consideration to offering the worker a period of unpaid leave if this is a commercially viable option.
If none of the above options are available to you or the worker still refuses to be tested, it may be possible to deal with the matter as a disciplinary issue if you can demonstrate that COVID-19 testing is ‘mission critical’ to the safe running of your organisation.
As most employment contracts are unlikely to contain clauses requiring workers to submit to regular medical testing, you would need to rely on the worker’s failure to comply with a lawful and reasonable instruction from their employer in order to take disciplinary action.
Are there any potential claims a worker could bring for being disciplined or dismissed for refusing to be tested?
This specific issue is yet to be tested in the employment tribunal as, typically, it takes around 12 months to get to a final hearing from the date of the claim being lodged. Therefore, implementing a mandatory testing regime and/or taking disciplinary action against those who refuse to comply is not without litigation-risk.
Dismissing an employee for refusing to take a COVID-19 test could amount to unfair dismissal and/or unlawful discrimination.
Due to the invasive nature of COVID-19 tests, it is also possible that requiring an individual to undertake mandatory testing could amount to an infringement of their human rights; more specifically their Article 8 right to respect for private life.
In order to bring a successful claim for unfair dismissal, an employee needs to have at least two years’ continuous service. The affected employee would need to show that the decision to dismiss them for refusing to take a COVID-19 test was unreasonable in all of the circumstances of the case to win their claim.
Much will turn therefore on how essential mandatory testing is to managing the risks at your organisation; for example, where staff come into regular contact with clinically vulnerable individuals or members of the public, testing may be critical to risk management. If the risks of transmission can be effectively managed in other ways, for example through home-working, mandatory testing may be deemed unreasonable by the employment tribunal.
The introduction of a mandatory testing regime could also amount to unlawful discrimination, particularly related to disability, contrary to the Equality Act 2010. Dismissing or disciplining a worker for refusing to take a COVID-19 test for reasons connected with a disability is likely to result in a successful discrimination claim.
You should seek legal advice before taking any disciplinary action against a staff member who is refusing to take a COVID-19 test. Each case should be carefully considered on its own merits and the specific risks involved.
You should be mindful that the processing of an individual’s health data, including the results of a COVID-19 test amounts to “special category data” under GDPR. This confers a responsibility on employers to ensure that they are lawfully processing such data. You should seek legal advice in relation to your obligations under GDPR.
The introduction of mandatory medical testing will be uncharted territory for most UK employers, and we know that many organisations are struggling to find the best way forward. Every employer wants to do their utmost at present to safeguard their workforce, but if you are hesitant to introduce mandatory testing, or are concerned about how such a policy will be received, you are certainly not alone. Remember that we are on hand to provide advice and support, whenever you need it.