A reader came to News OnTheWight with a similar question. Given it was about employment law, our first reaction was to ask Alison as a solicitor who runs Real Employment Law Advice. Here’s her advice for employers, employees about Covid-19 testing. Ed
Can an employee refuse to have a Covid test required by their employer?
This question raises some interesting points and the short answer is of course yes, an employee could refuse to take a test, however what action is available to the employer if an employee refuses, will depend on a variety of factors.
Is it a reasonable and proportionate way of dealing with risks?
The first consideration for an employer who is considering implementing Covid testing for staff should be, to look at whether testing is a reasonable and proportionate way of dealing with the risks they have identified.
This will of course differ depending on the nature of the job role of the individual and the work undertaken by the employer.
Close contact with vulnerable people
In the case of a care home where the employee is required to come into close contact with elderly and/or vulnerable people, it would, in my view, be a proportionate way to reduce the risk, which is clearly significant for the residents.
Importance of communication
The second thing that an employer should do is ensure that they communicate with staff and consult them on the decision to implement testing. This consultation should include taking into consideration any objections from staff and the reasons for the objections.
If after considering 1) if it is proportionate and 2) the views of the staff, an employer wants to introduce mandatory testing for all staff they should communicate to all staff very clearly what the consequences for failing to agree to be tested are.
If a test is refused
If an employee refuses to be tested, then the employer should speak to them on an individual basis to ascertain their reasons for refusal and try to reach some agreement or compromise with the employee first.
If the reason for refusal is unreasonable and/or no compromise can be reached, then an employer could discipline and potentially dismiss the employee.
Disciplinary action
The reasonableness of disciplinary or dismissal will depend on the particular facts, including the job role, risks identified and reason for the employee’s refusal.
By way of an example, if the employee were a front-line carer working closely with high-risk individuals then in my view, unless the employee has a legitimate reason why they do not want to have the test, it would be reasonable to take disciplinary action for their refusal.
Untested in the Courts or Employment Tribunal
This is of course a completely new area of law and therefore untested in the Courts or Employment Tribunal. ACAS have produced some guidance for employers, which, whilst it is not legally binding can be helpful for employers to follow and refer to in any defence to a claim for example if an employee claims unfair dismissal as a result.
The current ACAS guidance on testing in the workplace states the following:
- If an employer decides it’s necessary to test employees or workers for Coronavirus (Covid-19), it should be agreed with staff or the workplace’s recognised trade union.
- The agreement should be put in writing, for example in a workplace policy.
- Employers can ask staff to be tested, but they cannot force staff to take a test.
- If someone does not agree to be tested, the employer should listen to their concerns. It’s important for the employer to be flexible and try to find ways to resolve any issues.
- If someone unreasonably refuses to take a test, in some situations it could result in a disciplinary procedure. For example, this could be because it’s the workplace’s policy to test staff for coronavirus and necessary for someone to do their job.
- Employers must make sure they follow data protection law if they test staff for Coronavirus.
Balancing the risks
Employers, and particularly those who provide care or services to high-risk individuals, such as care homes or care providers, are of course faced with balancing the risks and their potential liability for failing to safeguard the welfare of their residents/customers if they allow an employee to work with residents/customers who could be carrying Covid.
An employer’s liability would be subject to whether they took all reasonable steps to reduce risk, one of which is of course, testing staff for Covid.
You can contact Alison by visiting the Website, Real Employment Law Advice.
Image: governortomwolf under CC BY 2.0
