Jul 21

To test or not to test? – that is the question

Written by Liz Pollock
Senior Associate

DDI: 01423 724608
E: liz.pollock@raworths.co.uk

The third and final article from Liz Pollock looks at the role of Covid testing in the workplace.

The government considers rapid testing to be a vital part of the roadmap out of lockdown and reducing the spread of the virus and it is encouraging employers to set up workplace testing for asymptomatic staff.

However, making workplace testing compulsory is not without risk.  While compulsory testing is not as contentious as mandatory vaccination, it still requires individuals to undergo an invasive test to help  identify more positive cases.

What can an employer do if an employee refuses to comply with its request to be tested? 

Open and effective communication is the best approach.  Employers should explain why testing is being requested and consult over the reasons why the employee is worried.  It could be financial concerns if the employee were to test positive and have to self-isolate, they may find it an unnecessary invasion of their privacy or the test itself too uncomfortable.  Understanding and addressing these concerns is the most reasonable way forward.  Allowing people to work from home, if practicable, may encourage a more positive commitment to testing and keeping colleagues safe.  It may also make the consequent decision of an employer to act on a refusal more reasonable and less likely to be found unfair.

Making testing mandatory has risks associated with dismissing employees who refuse (and have over two years’ service).  Is this a fair reason to dismiss?  It would be for an Employment Tribunal to assess the reasonableness of the employer’s decision to dismiss. Given that the tests are not 100% accurate in identifying positive cases, employers may struggle to show that testing is mandatory.  This is particularly the case since testing does not at this time allow the removal or relaxation of other COVID-19 secure workplace measures.

There are numerous issues that employers need to think about before their staff can return to the workplace. Critically important for many reasons, good communication can make a real difference.  Employers should talk to their staff and discuss their plans in order to flush out any issues and to prevent any problems when it comes to putting those plans into practice.

Published on 23 July 2021