Shoosmiths LLP
  June 10, 2021 - Milton Keynes, England

Workplace Testing and Vaccinations: What Employers Need to Know
  by Shoosmiths LLP

Workplace testing has proven to be a crucial piece in the UK government’s jigsaw to get British business back on its feet. But how can businesses implement a workplace testing programme  and will the vaccine roll out make a difference?

What is a lateral flow test?

In March 2021, the government confirmed that almost 50,000 businesses had registered for free and regular lateral flow tests through the government funded workplace testing scheme. This will enable those employers to routinely test staff for COVID-19 in a bid to keep the virus out of the workplace. Although it is no longer possible to register for the government scheme, employers are still able to use approved private providers to supply tests for their workforce or ask employees to check if they can get a lateral flow test through other government approved routes.

Lateral flow tests are useful for testing people who are not yet showing any symptoms but who may still be carrying COVID-19 and who could, therefore, pass it onto others. Used regularly, the tests have proven highly effective with a specificity of at least 99.9% when used to test a community of people twice a week.

The test itself involves swabbing the throat and nose before mixing it in with the special solution provided in the test kit. A small droplet of the solution is then dropped onto testing paper which will identify whether the virus is present.

The test result is ready in 30 minutes with results being submitted via an app to Public Health England.

Key considerations for employers

Asking employees to complete tests on a voluntary basis is possible, but is unlikely to offer much protection where not all employees take part or if they do not complete the tests on a regular twice-weekly basis. Many employers are therefore considering introducing a mandatory testing policy.

Before introducing any mandatory testing programme, employers will need to think carefully about whether they want to introduce an offsite or onsite programme. There are benefits to both and any organisation should think about their own workforce and requirements before deciding which is more appropriate. Employee engagement, as with all decisions throughout the pandemic, will play a key part in which route employers choose to go down. Circulating a survey, consulting with heads of divisions, engaging with trade unions and /or employee consultation bodies (if relevant) and conducting town hall meetings will all help ascertain how the workforce feel about testing in general and whether this should be onsite or offsite.

An offsite programme involves employers giving employees testing packs to complete in their own time. Whilst this will be far less onerous on employers, it will mean that they need to trust employees to take the test and submit the results online themselves. Some may be reluctant to relinquish such control.

Those with larger workforces, or those operating in sectors where employees work within close proximity to one another, may opt to implement an onsite programme to have more control over the process. This will involve testing staff during working hours and managing the process internally themselves.

Key considerations before implementing an onsite programme include:

  • Testing Site – testing will need to be done in an area with good natural air flow, ideally with windows capable of opening. Given that the results need to be uploaded to the Public Health England App the testing area will also need to have a good internet connection.
  • Designated Officer – employers should appoint a designated officer to oversee the programme and ensure that the officer has up to date GDPR and HSE training. Alternatively, there are external providers who can manage the onsite programme on behalf of employers.
  • Data Protection – health information is special category data and employers should ensure that records are kept in accordance with GDPR and privacy laws. It is likely that Employee Privacy Notices will need to be updated (or new ones issued specifically for this purpose) with the ICO encouraging employers not to hold COVID-19 health data for longer than required, particularly given the continued success of the national vaccination programme.
  • Timing – employers should consider whether they will allow employees time out of the working day to complete the test. Whilst the results can take up to 30 minutes to come through, taking the test can be done in a matter of minutes.
  • Policies – in some cases it will be necessary to introduce a Workplace Testing Policy to govern how the programme is implemented. This will be particularly relevant where businesses have a variety of roles being performed onsite. A policy should include things such as data protection provisions, how positive cases are dealt with, how often tests need to be taken and the obligations of any employees on furlough leave (particularly if they are on part-time furlough).
    It is important that businesses do not mistake the introduction of workplace testing programmes, whether on a voluntary or mandatory basis, as an excuse for relaxing other safety measures. Even where workplace testing shows no cases of COVID-19 amongst employees, businesses should persist with insisting that staff wear appropriate PPE, adhere to social distancing and hand washing requirements. This is a position that has been confirmed by HSE.

Mandatory vaccinations – yes or no?

Whilst the Public Health (Control of Disease) Act 1984 and the Coronavirus Act 2020 grants power to the government to combat and prevent the spread of infectious diseases, the legislation stops short of awarding the power to force citizens to undergo medical treatments and vaccinations.

As such, as it is currently not a legal requirement, employers cannot enforce mandatory vaccinations in the workplace. Accordingly, employers should avoid implementing any policies that could be construed as an attempt to introduce a mandatory vaccination programme at this time, although the position may change given that the government is currently considering whether to introduce mandatory vaccinations within certain sectors, such as the care sector, where employees work with clinically vulnerable people.

This is not to say that the topic should not be discussed with employees though. Employers should encourage the workforce to take up the vaccination when it is offered to them, sharing the benefits of being vaccinated, the latest vaccine health information and any arrangements in place to support employees such as whether they will have paid time off work to be vaccinated. Employers should also continue to follow the necessary safety regulations whilst in the workplace (as mentioned above), not least because an individual may still get or spread COVID-19 even if they have had the vaccine. It is certainly the case that, for the moment at least, the vaccination programme does not negate the need to consider other safety measures such as workplace testing.

The risks of making vaccination mandatory in the workplace

Those seeking to implement a mandatory vaccination programme should consider the risk of constructive dismissal and/or discrimination claims being brought. At the time of writing, not everyone has been offered the vaccination so making it a condition of employment could see younger staff, who are yet to have access to the vaccine, bringing age discrimination claims against employers. There are also pockets of society who, for medical reasons, have been advised not to have the vaccination by their GP for example because they could have an allergic reaction to it. Any mandatory vaccination programme, without flexibility to cater for such individuals, would prevent them from entering the workplace or working alongside colleagues thus creating a barrier to employment and potentially giving rise to both constructive dismissal and disability discrimination claims.

Nevertheless, employers in certain sectors may feel it reasonable to introduce such a programme and subsequently dismiss an individual who fails to comply. It is likely that the dismissal will be for reason of misconduct or some other substantial reason (SOSR).

For a dismissal by misconduct to be fair, an employer would need to show that the introduction of the programme was reasonable, and that the employee failed to follow the reasonable management instruction to have a vaccination. An employment tribunal is likely to consider a range of things in deciding whether the instruction was reasonable, such as why the programme was introduced, whether the employee was consulted, why the employee refused, whether any alternative working arrangements were possible, whether any warnings had been issued, and the way the employee refused. It is, however, highly likely that the tribunal would find that such a dismissal was unfair given that there is no legal obligation on individuals to be vaccinated.

Dismissals by reason of SOSR are only likely to be fair where a failure to have a fully vaccinated workforce risks impacting the employer’s position in the marketplace or where it could lead to additional litigation. For example, where an employer has been pressured from a customer who insists on dealing with vaccinated staff only and it would not be feasible to assign vaccinated staff only to the contract, where a reputational risk is real or where the health of the workforce is paramount to the safe delivery of services or production of goods e.g. in frontline services. The risk to the employer must be real and significant in order to safely proceed with a dismissal for SOSR.

Any employer considering going down the path of mandating vaccinations should discuss this with their employees and any recognised trade unions or employee consultative bodies in advance. 

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