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If you have any questions about COVID-19 for employers or any other employment matter please get in touch with CooperBurnett Solicitors Kent

By Joseph Oates, Partner and Natasha Smith, Senior Associate Solicitor

Who would have thought this time last year that employers would need to even consider that they may need to start testing their staff for signs and symptoms of a virus before they can come into work? All staff get ill from time to time and when the standard winter coughs and colds fly around the workplace, the usual response is to jokingly request that they banish themselves to the corner of the room and keep it to themselves, without anyone really being too fearful that it spreads.

In such a short space of time, we have become well accustomed to businesses undertaking temperature checks of their staff and customers at the entrances to their premises before they are allowed entry.

This act alone raises many questions such as: What happens if the temperature is above the normal range and a staff member is required to inform the individual that they have been denied access? How does an employer protect its staff from any abusive behaviour that might result? What does an employer do if their staff member fails the temperature test?

Due to the stringent health and safety requirements imposed on employers to ensure the workplace is ‘Covid-secure’, they will need to go one step further and insist that a Covid-19 test is undertaken for any staff displaying a high temperature before they can allow them access.

Below are some of the common issues that employers should consider before undertaking this step.

1. Is testing necessary and proportionate?
Voluntary Covid-19 testing of staff, together with the introduction of other safety measures, may reassure employees that their return to the workplace is safe. Test results are, however, classed as ‘special category data’, so employers must use and store this sensitive data in accordance with the General Data Protection Regulation (GDPR).

The Information Commissioner's Office (ICO) published guidance on testing and surveillance during the pandemic, 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’.

2. Can businesses make testing mandatory?
Given that current Government guidance requires anyone with Covid-19 symptoms to arrange a test and employers have a statutory duty to protect the health and safety of their employees, it is likely to be considered reasonable for them to instruct an employee exhibiting symptoms to be tested.

If the employee tests positive for the virus, the employer will be alerted to the risk of transmission at the workplace and this ensures they 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, it may not necessarily be reasonable for the employer to require an employee to be tested if they are not exhibiting symptoms (for example, as part of a routine testing programme to identify possible asymptomatic cases). Whether testing is reasonable in these circumstances will depend on the extent to which the risk of Covid-19 cannot be managed in the workplace by other measures, such as social distancing and remote working.

Clearly there are going to be some industries and workplaces where those measures are not going to be feasible alternatives for an employer to implement, therefore it is more likely to be accepted that testing is the only way to mitigate the risks.

3. Is individual consent required? 
The testing process for Covid-19 can be invasive and uncomfortable, requiring a swab to be taken from inside the nose and back of the throat. Although some employees may agree to undertake testing to limit the risk of an outbreak in their workplace, individual consent is going to be required to conduct each and every test.  

Ideally, businesses wishing to implement routine testing of their workforce will do so with the consent of their staff. Employees are more likely to provide their consent if they have confidence that their employer will handle their personal data sensitively and securely, and if they believe they will not be penalised in any way if they test positive.

Where testing is considered necessary and proportionate, businesses could seek to make testing a contractual obligation. If the obligation to be tested is validly incorporated into the employee’s contract, failure to comply with such a test would be considered as a breach of contract by the employee.

Given the likely long-term impact of the pandemic, including a clause dealing with this in employment contracts is recommended in order to protect employers as far as possible.

4. Can an employer sanction an employee for refusing to be tested?
Yes, however, before taking disciplinary action against staff for refusing their consent to testing, an employer must take into consideration the employee’s individual circumstances and any mitigating factors, as individuals may have valid reasons for refusing to be tested. The requirement to be tested could also disproportionately affect some protected groups, such as those with certain disabilities and therefore amount to indirect disability discrimination.  

Ultimately, to ensure that employee testing is handled correctly, communication with staff needs to be a priority for employers. 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 and livelihoods, we expect that employers should be able to obtain the necessary support that it requires for testing to be implemented.

If you have any questions about this or any other employment matter, please call Joseph Oates, Partner, on tel: 01892 515022 or Natasha Smith, Senior Associate Solicitor, on tel: 01892 515022

This blog is not intended as legal advice that can be relied upon and CooperBurnett does not accept any responsibility for the accuracy of its contents.

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August 13, 2020
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