20 January 2021 #Employment
Last week, the Government announced its expansion of community asymptomatic testing to identify more positive cases of COVID-19.
Local authorities are being encouraged to target testing at those who cannot work from home, to try and prevent the spread of the virus amongst the 1 in 3 people infected that do not display symptoms.
In addition, it was announced that NHS Test and Trace will be working with other government departments to scale up workforce testing; 15 large businesses in the UK, including Octopus Energy, Apetito and Wiltshire Farm Foods, are currently piloting this scheme.
In the wake of this new focus on workplace testing, this article discusses whether employers can make testing mandatory amongst their employees.
Can we enforce workplace testing?
Unfortunately, this is not a straightforward answer. Government guidance suggests that this is at each employer’s discretion.
Employers have a legal duty to ensure the health and safety of their employees at work. Some employers may consider mandatory testing as way to ensure this duty is discharged. This assessment will likely depend on the nature of the work carried out by staff and the working environment. For example, workforces that are unable to work from home and who are likely to come into contact with others, could be required to self-test using home kits. The NHS is already using similar schemes to ensure its employees self-test twice a week.
Despite this, the government guidance directs employers to consider “arrangements for individuals who do not wish to be tested”, this is more suggestive of a voluntary arrangement for testing.
As there is no definitive ‘yes’ to the question on mandatory testing, we would advise that the following should be considered before making a decision for your organisation::
Data protection compliance
As workplace testing involves the processing of employee’s health information, this is classified as ‘sensitive personal data’. Employers will therefore need a ‘lawful basis’ to process it.
The ICO’s guidance on workplace testing sets out that ‘the employment condition’ and/or ‘public health condition’ are likely to be the lawful bases that businesses can rely upon.
The employment condition applies to organisations who are testing to ensure workplace health and safety and the public health condition applies to employers helping to prevent the spread of the virus via their own testing programmes. However, results must be reported to the relevant public health authorities; this would include the Government’s asymptomatic testing pilot.
Despite the above, the ICO stops short of saying that workplace testing can be mandatory. It directs employers to consider whether the use of data collected through testing is fair and proportionate to the specified purpose. The ICO further directs employers to consider the negative implications of mandatory testing, and whether a voluntary approach could receive similar results.
In any event the ICO directs that before employers put testing in place; they must complete a data protection impact assessment to document compliance with the GDPR.
Employees that refuse
Where an organisation is considering mandatory testing, enforcement must be consistent for those that refuse to avoid potential discrimination claims for different treatment.
Due to the severity that refusing a test and subsequently spreading the virus in the workplace could have, many employers would likely deem dismissal in such circumstances as a reasonable response to refusal.
As mandatory workplace testing is not yet widespread, it’s too early for case law on whether a dismissal in these circumstances would be deemed ‘unfair’. Despite this, many employers may consider that the risks associated with the virus far outweigh the risks of potential claims brought by employees who are dismissed in these circumstances.
Despite this, employers should be mindful of the reasons why employee might refuse a test. For example, the financial implications of self-isolating on statutory sick pay for 10 days could be a valid reason.
For reference, statutory sick pay is £95.85 per week. The office for national statics reported that the average weekly pay in the UK was £527 per week in October 2020.
Due to this, transparency and communication will be paramount so that employers can understand employees’ concerns before a mandatory testing programme is rolled out. Topping up sick pay or signposting employees to other financial help available. such as the government’s self-isolation grant which was announced in September, could help mitigate employee’s concerns.
Employees that test positive
Self-isolating after receiving a positive test is a legal requirement for an employee. Both the individual and their employer face fines for non-compliance.
However, Test and Trace protects the identity of positive individuals when informing their contacts to self-isolate. Similarly, for workplace testing, the identity of positive individuals should be protected if other employee contacts are informed.
The ICO has made clear that data protection laws should not prevent quick action from being taken when an individual tests positive. However, employers must consider what information is necessary to communicate and it’s likely that the disclosure of an individual’s name is not necessary to protect others.
However, in reality employees are likely to twig if their colleague is not at work, particularly in workplaces where staff cannot work from home. Again, transparency and communication with staff to discuss concerns over privacy will be paramount. Employers should be honest and explain that whilst they agree not to disclose certain information this will not stop individuals from recognising absences. Employers should also communicate to the workforce that privacy should be protected and discourage gossip and discussion on absent colleagues.
An anticipated issue with workplace testing is having employees needlessly self-isolate following a false positive result. Therefore, before workplace testing is rolled out, thought should be given to how the tests will be administered, and by whom, to help ensure accuracy.
Whilst many may agree that it is better to be safe than sorry in relation to false positives, the financial implications of self-isolating for many employees may be stark. Employers should provide relevant information to staff on their testing regime to try and reassure employees on it effectiveness.
Ultimately the risk of false positives cannot be eliminated but thought should be given as to how this can be minimised.
How do we start?
As the guidance on mandatory testing does not provide employers with the green light they might have been hoping for, we recommend that organisations seek specific legal advice before enforcing workplace testing.
Employers should have a clear plan on consultation with staff, which may include discussions with recognised unions or other accepted bodies within the business.
Government guidance strongly advises employers to communicate information to staff on:
Employers also need to assess whether mandatory testing is necessary in their context of their business. This could be based on a number of factors including their industry, exposure to the virus, whether contact with others is intrinsic to the job role etc.
Finally, a data protection impact assessment must be carried out. This will ensure the mandatory testing regime is GDPR compliant.
If you would like bespoke advice for your business on workplace testing, please get in contact with the Employment team.