Can employers make Covid-19 testing mandatory?

Many employers are feeling the impact of employees being absent from work with Covid-19 or Covid-19 related absences such as having to self-isolate in line with government guidance but…

can you force your employees to take a test?

In short, an employer can’t force an employee to take a Covid-19 test and submit the result. However, there are steps businesses can take to try and encourage this if they wish to introduce a mandatory testing programme within the organisation.

For employers who would like to implement a testing policy or programme, guidance advises them to:

• Consider the scope of any testing programme, including who will be tested, frequency of testing, arrangements for individuals who refuse to be tested and how test results will be used.
• Think about how they intend to communicate with staff. Employers are “strongly advised” to consult with staff associations or unions before implementing any policy.
• Be aware of data protection obligations in processing data, how they will communicate to staff, how personal data will be used and the compatibility of the testing programme with legal responsibilities.

Undertaking a consultation process with all employees and workers or, where appropriate, a recognised trade union regarding the proposed policy and invite feedback as to the proposal and rationale gives employers an opportunity to explain the underlying principle and benefits to everyone of a mandatory testing scheme. It also encourages a general consensus within the workplace.

Consideration would need to be given to whether workplace testing is a proportionate way to address the risk, taking into account the employer’s health and safety risk assessment.

What if an employer implements a mandatory testing policy and staff refuse to be tested?

The ACAS Working safely during coronavirus guidance includes a section on testing. The guidance states:

• If an employer decides it is necessary to test employees or workers for Covid-19, this should be agreed with staff or the workplace’s recognised trade union.
• Any agreement should be “put in writing”. For example, into a new workplace policy.
• Employers can ask staff to be tested, but they cannot force staff to take a test.
• If an employee does not agree to be tested, the employer should listen to their concerns. Employers should be flexible and try to find ways to resolve any issues informally and try to avoid taking any formal action. Employers should think about whether staff could work from home or do a different job. If there are no alternatives and testing continues to be refused, it may be possible to instigate disciplinary action.
• If an individual unreasonably refuses to take a test, in some situations it could result in disciplinary action. For example, this may be where there is a workplace policy to test staff for Covid-19, it is necessary for someone to do their job and absolutely crucial to the running of the business. In the main, contracts of employment are unlikely to contain clauses requiring staff to submit regular medical testing, therefore employers would need to rely on failure to follow a reasonable instruction in order to take disciplinary action.
• Employers must make sure they follow data protection law if they test staff for Covid-19.

Could employees bring a claim against their employer?

The employment tribunal is yet to hear any claims relating to mandatory testing due to the fact that it usually takes around 12 months for a case to be heard from the date it was lodged and not enough time has passed. Introducing a mandatory testing scheme and taking disciplinary action against employees for failure to comply does not come without risk. If the risk of transmission can be effectively managed in other ways, for example by working from home, then mandatory workplace testing may be considered unreasonable by the employment tribunal.

It is important to be aware that dismissing an employee for refusing to take a test could amount to unfair dismissal and/or discrimination. There could also be a question around the invasive nature of the testing procedure itself and the employee’s human rights, namely Article 8 and the right to respect for private life.

Employers should ensure they seek legal advice before implementing any policy of making any suggestion of mandatory testing to its workforce. Each case needs to be carefully considered on its own facts and the risks involved. Get in touch today to speak to our Employment Solicitors or HR Consultants to find out how it may affect your business and employees!

Article by Peach Law