As part of the Government’s response to COVID-19, there has been an expansion of workplace testing for businesses.
Employers who employ more than 50 essential frontline staff, who cannot work from home, will be able to access lateral flow tests, free of charge, until 31st March 2021.
Businesses are being actively encouraged to come forward for testing. This helps to identify and break the chain of transmission among individuals who do not have symptoms, especially as the Government estimates 1 in 3 people have COVID-19 without realising they have the infection.
As of the date of this blog, approximately 100 organisations across 500 sites offer these rapid tests. Employers in key sectors, especially retail, transport and customer facing roles are already getting involved.
However, in the same way as the vaccination programme, it is unlikely that an employer can force a member of staff to get tested if they do not have symptoms.
Employees who have over two years’ continuous service have the greatest protection, because employers cannot fairly terminate someone’s employment in the circumstances. However some discretion may be afforded to businesses in certain sectors, particularly customer/client/patient facing roles, where there is a reasonable purpose to insist on the test, in the same way that employers require someone to wear PPE.
The situation is different for those with less than two years’ service, as well as those who are not employees, namely workers and the self-employed. These people are unable to bring a claim for ordinary unfair dismissal. In the circumstances, employers could insist on taking a test, otherwise the individual could be fairly dismissed, although risks remain for potential claims in limited circumstances for automatic unfair dismissal.
However employers must be mindful of discrimination claims, especially members of staff who complain that they are being discriminated because of a protected characteristic. If someone does refuse to take a test, it is best to understand their reasons, and to crucially identify and address any legitimate concerns.
In the months ahead, businesses and members of staff may also be faced with additional requirements for COVID-19. In the same way as it is a requirement to have a negative test before entry into the UK, it may be the case that other locations such as theatres, stadiums and large venues insist on the production of a negative COVID-19 test. This in turn may make it difficult for individuals to carry out their work if they are unable or unwilling to get tested, thereby potentially allowing an employer in such a unique situation to undertake a fair dismissal for capability or some other substantial reason.
In summary, businesses should be cautious about making any rash decisions about threatening dismissal or compelling their workforce to take a test. However the situation may change and evolve as the Government looks to end the lockdown and reopen the economy, to the extent that testing and vaccinations will probably complement our day to day lives.
For more information, please do not hesitate to contact Sally Morris on 01905 610410 or at sally.morris@mfgsolicitors.com.
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