9:03 am, June 12, 2021
Dealers who may be thinking of bringing in a coronavirus testing policy in the workplace can’t force their staff to undergo a test.
That’s according to automotive legal consultancy Lawgistics as the Delta variant first identified in India continues to spread.
Public Health England said on Friday (Jun 11) that cases were estimated to be doubling every four and a half days in parts of England.
It reported that 42,323 cases of the variant had now been confirmed in the UK – up by 29,892 from last week.
Writing in Lawgistics’ latest update, legal adviser Kiril Moskovchuk commented on the fact that dealers may now be considering bringing in a policy of testing.
He said the government was still recommending that an on-site workforce should be offered access to at least two lateral flow – aka rapid antigen – tests each week by private-sector employers.
Kits can be ordered from private providers, third-party providers can be brought in to test staff, or workers can be asked to self-test with an NHS kit that they can get.
But Moskovchuk said employers needed to consider various aspects before bringing in a testing programme, including:
- Who the testing will cover
- The fact it’s for non-symptomatic staff – employees who are displaying symptoms need to self-isolate and take a PCR (polymerase chain reaction) test that is sent to a lab
- How often staff will be tested
- Appropriate facilities for carrying out the tests
- How the test results will be used
- What the arrangements will be for someone who doesn’t want to be tested
- Compatibility with legal responsibilities to staff, including health and safety, equalities, data protection and employment law
He said that from a data protection perspective, health data was a type of sensitive personal data.
The employer’s processing of the coronavirus testing data would be on the grounds of legitimate interest, since keeping everyone safe in the workplace was in the public interest.
Moskovchuk said employers could bring in periodic testing for all staff or for specific jobs – for example, where there might be a heightened risk of infection because social distancing was a challenge or because staff were dealing with the public.
He added: ‘An employer cannot force employees to take a coronavirus test but may issue specific instructions to take the test.
‘The instructions will be subject to a test of reasonableness, and what is reasonable from the employment law perspective will depend on the individual circumstances.’
He said Acas – the Advisory, Conciliation and Arbitration Service – stressed that bringing in workplace coronavirus testing should be based on staff consultation and agreement.
