With the relaxation of lockdown measures and an increased return to the workplace, many employers – mindful of their duty to protect the health and safety of staff – are implementing measures designed to keep their employees safe. From one-way systems to plastic screens, the steps taken will change the way workplaces look as well as the way we go about our work.

However, some employers have been pondering whether, as part of these new measures, they can require their employees to take COVID-19 tests.

The issue is complicated and one that involves employment law; therefore, even if employers think that compulsory testing is a good idea, they should consider taking legal advice before putting any such requirement in place.

Reasonable or not?

If there are other ways of managing the risk, for example social distancing, remote working or other measures that can render the workplace as COVID-secure as is reasonably practicable, a requirement for employees to be tested is more likely to be interpreted as unreasonable.

However, if – due to the nature of their work – social distancing and other preventative measures are not possible to implement, the requirement to undergo testing may become reasonable as it would be beneficial to the health of everyone in the workplace that a case of coronavirus is picked up as quickly as possible. This may be all the more so if the employee comes into contact on a regular basis with members of the public or vulnerable sections of the population.

Things to consider

At present, there are no confirmed legal guidelines which provide any statutory provisions letting an employer insist that an employee in any setting must have a COVID-19 test.

If an employer wishes to insist that an employee undertakes a COVID-19 test, consideration should be given to whether:

  • there is any clause in the employees’ contract which gives the employer the right to require the employee to undergo such a test.

  • the requirement for the employee to undergo a COVID-19 test may be regarded as a reasonable management instruction.

It is currently unlikely that an employment contract will provide any clause requiring employees to have any form of COVID-19 test. However, it is relatively common for an employment contract to contain a general contractual right for an employer to reasonably require an employee to undergo a medical examination.

However, as there is currently no case law to support COVID-19 testing in the workplace from the perspective of employment law, it is uncertain whether this type of contractual provision could be interpreted to allow the employer the additional right to request the employee undertake a test for COVID-19.

Even where there is a clause of this nature in the employment contract, or it is listed within the disciplinary procedure as an offence to refuse, an employer has no lawful right to physically force an employee to take a COVID-19 test.

In such cases, it would be up to the employer to act reasonably, and – dependent on the facts of the situation on a case by case basis – determine whether or not that employee’s refusal to attend a COVID-19 test in that particular case or circumstance could warrant potential disciplinary action for failing to comply with their request.

Can an employee be disciplined or dismissed if they refuse to be tested for COVID 19?

In order for an employee’s refusal to take a COVID-19 test to count as misconduct, there would need to have been a breach of a disciplinary rule, or a failure to comply with a lawful and reasonable instruction from their employer.

Even if an employee has committed an act of misconduct by refusing to obey an employer’s reasonable instruction, that act of misconduct would not necessarily be sufficiently serious to justify dismissal. If they were dismissed and a claim was made against the employer, an employment tribunal would first look at whether the employer had acted reasonably in treating the employee’s conduct as sufficient enough to warrant a dismissal given the circumstances.

Factors that may be considered relevant in deciding if there has been any form of misconduct could include:

  • Whether the instruction was made in accordance with the contract or with unwritten duties arising from custom and practice or implied terms and conditions of the contract.

  • Whether there were circumstances justifying the refusal of the instruction, even if it ostensibly falls within the scope of the employer’s powers.

  • whether the employee was acting reasonably in refusing to comply with a lawful instruction e.g. a danger to the employee’s health & safety, where the employee has a religious or philosophical belief on which their refusal is based or where the employee may have a medical reason to refuse, such as a genuine phobia of medical examinations or medical personnel.

  • The fairness or reasonableness of the instruction, even if it is lawful.

For example, if the employee is a care worker, the risk of passing on the coronavirus to residents may be deemed serious enough that a tribunal would consider the employer’s use of disciplinary measures – including dismissal – against a refuser to be a reasonable course of action. This does not necessarily mean that dismissal should be the first response to a refusal. Disciplinary action that stops short of dismissal may well be seen in a more favourable light by the tribunal.

However, the specific facts of each individual case will have a bearing on the outcome of any tribunal hearing.

Things for employers to consider

If a COVID-19 test is taken, it is likely that the employer will want to know the result so that it can act accordingly.

Where an employer processes an employee’s health information, (for example, their coronavirus test results), the employer will need to ensure that the data processing is lawful, which means (among other things) ensuring that the GDPR data protection principles are complied with, there is a lawful condition for processing personal data, and there is a specific condition for processing special category data.

The ICO has issued guidance on the implications for data processing of the COVID-19 pandemic and this guidance emphasises that employers will be required to demonstrate that their testing system is “reasonable, fair and proportionate”. In addition, the guidance also suggests that a data protection impact assessment could help the employer to determine if their testing fulfils those criteria.

Transparency about testing is also very important and information will need to be provided to employees before any testing is undertaken.

This information will need to include the uses to which the data will be put, with whom it will be shared, the length of time it will be retained and what decisions the data will inform.

A COVID-19 policy

It is unlikely that many employers will yet have a COVID-19 testing policy in place. Such a policy should certainly be considered; given the implications of getting it wrong, it is a very good idea to get professional legal advice on drafting it.