Employers’ owe a duty to safeguard the health and safety of staff in the workplace. As the lockdown eases, and more employees return to work, employers make their premises safe. Having an appropriate COVID risk assessment, carrying out training and instructions and implementing social distancing measures etc. Another consideration is whether employers should carry out COVID testing on site.
The current government advice is that anyone demonstrating symptoms can present themselves to request a test via the NHS. But there is no guidance compelling employers to carry out such testing when employees return to work, and even if they do, employers will have to fund these.
Employers may want to introduce a testing regime in their workplace, as a measure to guard against the risks of COVID, to minimise the risk of an outbreak, to minimise risk of business interruption and to reassure staff. Although there are legitimate business and safety reasons, employers will need to consult staff and obtain their consent before the scheme can be implemented. Apart from the issues of privacy, these tests tend to be uncomfortable and painful.
Covid Symptoms
Where an employee has persistent symptoms, testing may be a reasonable and necessary measure, to safeguard the safety of the workforce. A refusal may be deemed to be unreasonable, falling within the company’s disciplinary procedures. It is more problematic when symptoms are not present. Most reasonably minded employees will not object to testing, but some may refuse. It then raises the question; “Has the employee unreasonably refused to carry out a reasonable and legitimate instruction of the employer”? Without an outbreak and where other measures are in place to manage the risks of COVID, it may be difficult to justify disciplinary action. But, where social distancing and other safety measures cannot be implemented due to the business activities, building lay-out etc, then the requirement for testing becomes reasonable and necessary. A refusal can constitute misconduct. Employers must make sure that their approach is reasonable, fair and proportionate.
Where there is an unreasonable refusal to be tested, employers should thoroughly investigate the reasons for refusal before instituting formal proceedings. Employers should also consider the adequacy of existing prevention measures which would make testing less important. To justify disciplinary action, the employer must be able to demonstrate that testing was required as part of the safety measures in place and that the employee did not have a valid/legitimate reason to refuse.
GDPR
Having carried out rests, employers are then duty bound to ensure that the results are handled and stored in the secure manner, which are compliant with GDPR rules. More information can be accessed via the ICO website
This of course can become a blurred issue. This is where Quest can come to your assistance. Our team of HR and Health and Safety Consultants can advise you on the most appropriate course of action. We will offer advice that is practical, commercially focused and effective. Call us on 01455852028 or contact us.
