The importance of context
Gowling WLG has been supporting organisations across various sectors to address workplace issues raised by the pandemic that are constantly evolving. As employers look to reopen more office spaces and strengthen the existing health and safety measures they have in place, employers will inevitably be grappling with questions around testing and vaccines.
From those weighing up testing systems to those who want to check they are being legally compliant, employers should ask from the outset why they are wanting to test staff. The rapid result lateral flow tests have been subject to plenty of coverage around the limitations of this method. Private testing schemes are expensive, but many have invested significant sums to build their own private systems including John Lewis, Formula One, BAE Systems, Octopus Energy and Amazon.
Compelling justifications for employers using testing systems include:
- Health and safety – the desire to protect staff, clients, customers and service users.
- Business continuity – to reduce the risk of workplace outbreaks and workforce gaps.
- Reassurance – that working premises are as safe as possible for staff and clients.
- Contributing to public health efforts – keep in mind other protective measures you have in place and the accuracy of the test results.
These are all good starting points for rolling out testing, but employers need to interrogate their approach further. Is there a less privacy-intrusive way? Will the testing be voluntary or compulsory and what are the consequences of refusal? Have you considered those with disabilities? How will you consult with staff and Trade Unions?
Data protection regulations under the General Data Protection Regulation (GDPR) may stop employers from collecting data at all, even on a voluntary basis. Information on whether someone has Covid-19 constitutes health data. It is unlawful to process unless there is:
- a lawful basis (defined as a Public task (public authorities) Article 6(1)(e);
- a Legitimate interest (Article s6(1)(f) – establishing whether processing is necessary and the intrusion on privacy justified); and
- Legal obligation (Article 6(1)(c)) – establishing a lawful basis to process personal data.
There is also the special category condition – defined by the ICO as employment to protect the health and safety of staff (Article 9(2)(b)) and public health (Article 9(2)(i)), which would cover employers trying to stem the spread (Article 9(2)(i)). You must have key documents in place showing that you meet these conditions or the ICO can issue enforcement measures if these are not satisfied.
The risks of introducing mandatory testing
Employers must offer reasonable adjustments for disabled employees, and explore alternatives to mandatory testing, unless other measures to make the workplace covid secure are not robust enough. For example, in a busy manufacturing environment, where the nature of the work means employees can’t work from home, there may be inevitable close contact in spite of social distancing measures. Employers may be more likely to have a lawful basis to carry out regular testing to identify asymptomatic cases.
2. Unfair dismissal
Those with over 2 years’ experience risk claiming this if they feel that the instruction to have a test is unreasonable. The employer should look at the contract, return to their risk assessment in introducing testing and consider whether it is fair in all the circumstances to dismiss. Dismissal should be reserved for the most extreme circumstances – disciplinary action is a high-risk strategy. This is why completely optional testing may ease employee relations.
The importance of consultations