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COVID-19 workplace testing: what you need to know
As coronavirus testing options increase and returns to the workplace begin to look more realistic, it's a good idea to know what your options are regarding workplace testing.
Who is testing for?
At the time of writing, working from home is still the default advice. But the UK government wants as many employers as possible to introduce a workplace testing programme for staff who can't work from home. This drive is mainly aimed at employers with 50 staff or more, but there are also options for smaller businesses.
Workplace testing isn't for those with coronavirus symptoms (they should get a PCR test themselves through the NHS). Instead, the purpose is to catch asymptomatic staff, i.e. those who have COVID-19 but not symptoms – about 1 in 3 with coronavirus don't have symptoms, but can still pass it on.
Therefore, workplace testing focuses on 'lateral flow' tests. These detect antigens (proteins) produced by the virus and give results in 30 minutes.
Arranging tests
It's up to you to decide if you want to implement testing, but the UK government recommends that larger employers (50+ employees) offer their on-site staff access to at least 2 lateral flow tests every week. You can choose to:
- buy your own tests and set up your own workplace testing;
- pay an approved provider to provide tests or run a test site for you; or
- if there are problems setting these up, buy tests for staff to test themselves.
If you employ fewer than 50, you're free to do the same. However, UK government guidance suggests you can instead ask on-site staff to order their own free tests via GOV.UK, or to get a test at a local testing site. Again, they should do this twice a week.
Voluntary testing
Ideally you should introduce testing on a voluntary basis, with a clear workplace testing policy and communication plan. Consult staff about your plans - explain why you're asking them to be tested and the benefits of doing so. Listen to what they say.
You should also consider the Advisory, Conciliation and Arbitration Service (Acas) guidance on workplace testing.
Can you make testing mandatory?
There's currently no legal obligation for workplace testing. So, you might find it difficult to justify a blanket requirement that all staff must be tested. But, if it's something you want to consider, there are 2 possible ways of going about it.
First, employees have a duty under the general law to obey the lawful and reasonable orders of their employers. So, you could possibly argue that taking a workplace test is a lawful and reasonable instruction. But what's 'reasonable' will be different for every workforce and workplace. It'll likely depend on the risk and implications of COVID-19 for your particular setting. For example, mandatory testing may be reasonable if you can't put in place other COVID-secure measures. Get legal advice if you think requiring testing may be justified as it'll depend hugely on your circumstances.
Second, you could change an employee's contract to add a testing requirement. However, this is potentially problematic. You'll need their agreement – if you make the change without it, you'll break the contract and its original terms will remain in place. This could lead to claims of breach of contract, unfair dismissal or constructive dismissal.
Again, get legal advice before trying to make testing a part of staff contracts.
In summary, if you want to impose a mandatory testing requirement, you must first:
- undertake a detailed risk assessment to show why COVID-19 testing is required on top of the stringent COVID-secure guidelines already in place;
- consult with workplace representatives or trade unions where applicable; and
- get legal advice.
What can you do if an employee refuses to take a test?
If you have lawfully and reasonably introduced a mandatory testing requirement, you may be able to take disciplinary action, but only if the employee can't work from home.
Before that, you should find out their reasons and see if you can address those concerns. If an employee has valid medical reasons for refusing a test, you'll need to consider the situation particularly carefully – disciplinary action in those circumstances may be difficult to justify and could even be disability discrimination. If the employee can't work from home, you may be able to discipline the employee for failing to follow reasonable management instructions, but only if their refusal is not reasonable.
You must always allow for exceptions. Listen to any concerns and objections the employee has and take them seriously. Even if you've put in place a policy or contractual requirement, you won't be entitled to act on it if your employee's refusal is reasonable in all the circumstances.
Can you send an employee home without pay if they refuse to take a test?
Unless you're contractually entitled to suspend them without pay (which is rare), sending an employee home on nil pay for refusing to take a test could lead to a claim for unlawful deductions from wages. Get legal advice before making any decision to withhold pay.
What happens if an employee tests positive?
An employee who tests positive must self-isolate for 10 days unless they're then told to take a PCR test and that returns negative.
If an employee has been tested as part of a UK government-registered workplace testing programme, their test results will be shared automatically with NHS Test and Trace, their local GP, and Public Health England via the workplace testing e-system. NHS Test and Trace may identify the employee's close contacts and they may be required to self-isolate too. This could include colleagues at work.
Employees who test at home only have to tell you their test result if it's positive.
Does testing mean you can relax existing safety measures?
Workplace testing should continue to be used alongside existing COVID-secure measures for the time being. You should remind your staff to continue to follow those COVID measures and not to relax their efforts.
Data protection
If you collect test data, including the results of employee tests, you must handle it as special category data in accordance with the Data Protection Act 2018.
The ICO guidance makes clear that employers considering requiring testing must conduct a data protection impact assessment focusing on testing and the new risks it will create.
Unnecessary data should not be collected and strict confidentiality and data security are essential.
You may also need to update your employer's privacy notice.
More information
See GOV.UK for the latest testing guidance – it's likely to change and evolve over the coming months. We'll also continue to update you with the latest developments.
There is separate guidance for employers in Scotland, Wales and Northern Ireland.
New Debt Respite Scheme comes into force
New regulations came into force in England and Wales on 4 May to help those struggling with serious money problems. This Debt Respite Scheme is a permanent change rather than a temporary COVID measure. It could grant you critical breathing space if you're in debt, but at the same time impose potentially problematic delays if you're owed money.
What is the scheme?
If a person – which includes a sole trader with business debts – is struggling to pay what they owe, they may be able to get a formal period of 'breathing space'. During this, those they owe money to can't take any action or even contact them about the debt. Any interest or other charges must also be frozen. The idea is the person can use the time to get advice and form a plan to pay off their debts.
There are 2 types of breathing space:
- Standard breathing space
This lasts for 60 days, although can be cancelled before then. To get it, the person must speak to a professional debt advice provider. The provider can grant the breathing space period if they think it's appropriate in the circumstances.
- Mental health crisis breathing space
To be eligible for this, the person must be receiving mental health crisis treatment as defined in the debt respite scheme. It lasts for however long their mental health crisis treatment lasts, plus 30 days after that treatment ends. It can be cancelled before then.
The person doesn't have to get debt advice from a debt advice provider – instead, an approved mental health professional can certify that they're receiving mental health crisis treatment and provide the required information to a debt advice provider.
Eligibility criteria
To be eligible for either type of breathing space, the person must be living in England or Wales. The debt must be a qualifying debt. Most debts are qualifying debts, including those that arose before the debt respite scheme came into force.
Debts that arise after a breathing space period starts are not qualifying debts. Other non-qualifying debts include any new arrears on secured debts, such as a mortgage.
A person can only get a standard breathing space once in any 12-month period. However, they may be able to get a mental health crisis breathing space if they've already had a breathing space (of either kind).
A debt advisor should only grant a standard breathing space if the person can't, or is unlikely to be able to, repay all or some of their debt.
What happens during a breathing space?
If the person is granted breathing space, the Insolvency Service tell the people who are owed the money. Those people must then stop any attempts to recover the debt until the breathing space period is over. This includes (among other things):
- Collecting the debt
- Contacting the person to enforce the debt, including to demand payment or as a precursor to legal action
- Charging any interest or other fees (for accruing interest, the clock effectively stops during the breathing space period)
- Starting legal action
- Enforcing a court or tribunal judgment or order, even if it was got before the breathing space
- Serving notice to take possession (or taking possession after serving notice) of their home
The people owed money also can't instruct someone else (e.g. a solicitor or a debt collection agency) to do any of these things on their behalf. And if they've already done it when breathing space is granted, it's their responsibility to then tell whoever they've instructed (as they'll be liable for any loss that's suffered as a result).
The only allowed contact is if the person who owes money asks a question, makes a complaint or wants to talk about a solution.
Getting a breathing space period cancelled
If the person owed money feels that the breathing space unfairly prejudices their interests or that there's some reason why it shouldn't have been granted, they can request that the debt advice provider reviews it. If after that they still aren't happy, they can appeal to the county court to ask for it to be cancelled.
More information
We've added sections on the scheme to our law guide, and updated the guidance in our Debt collection letters for unpaid invoices. For extra information, see GOV.UK.
Employee who stopped work over COVID-19 concerns was fairly dismissed rules tribunal
An employer who sacked an employee after they stayed away from the workplace over concerns about coronavirus has successfully defended an Employment Tribunal claim.
The employee was relying on a protection under the Employment Rights Act. This states that if an employee reasonably believes they're in serious and imminent danger, they must not suffer any detriment if they refuse to go to work or take appropriate steps to protect themselves as a result.
In April we reported that this protection is being extended to workers (as well as employees) from the end of May. Its use has rarely cropped up in the past, but the pandemic has made it more relevant to current health and safety work practices and environments. This appears to be the first time a court or tribunal has had to assess it in relation to the pandemic.
The case
The employee worked in a large warehouse. The workplace remained open during the March 2020 lockdown. The employer implemented government safety guidance and told staff about the measures it had put in place so that they could continue working. These included social distancing, wiping down surfaces, offering masks, and staggering start, finish and break times.
The employee developed a cough, which he thought resulted from the temperature and dust in the warehouse. He texted his manager, stating he was staying away from the workplace until the lockdown had eased, as he was worried about infecting his 2 vulnerable children with COVID-19 (tests were not available at that time). His manager replied, seemingly approving it.
There was no further contact between them for nearly a month, at which point the employee learned he'd been dismissed. He then started the tribunal claim for automatic unfair dismissal.
The tribunal agreed that the employee must have had significant concerns at the time, generally about the pandemic and specifically about his 2 children.
However, the tribunal decided that despite these concerns, the employee had not taken any steps to avert danger or raised concerns with his manager before sending his text message. Nor had he mentioned any concerns about workplace danger in the text he sent. He also breached self-isolation guidance to drive a friend to hospital the day after leaving work.
This, together with the safety steps taken by his employer, led the tribunal to conclude he could not show there had been any danger at the workplace. It also rejected his claim that COVID-19 created a situation of serious and imminent workplace danger regardless of an employer's safety precautions – accepting this would have meant any employee could leave the workplace simply by virtue of the pandemic.
What this means for you
As always, this decision is not binding on any other tribunal. The facts are also unusual in that the employee's evidence was vague and contradictory. All such cases will depend on their own facts. In particular, employees might have different circumstances that are important, such as serious health conditions.
However, the case is welcome news for employers. It also demonstrates the importance of implementing appropriate COVID-19 safety measures, as they were a key part of the employer's defense.
COVID-19 round-up: right-to-work checks; shielders can still be furloughed
Two quick changes to note this month:
- Temporary changes to the 'right to work' employer check were due to end on 16 May, but will now instead end on 20 June 2021. As a result of the pandemic, you can temporarily make these checks via video call or by viewing scans or photos of documents over email (rather than seeing the originals). However, the process will return to normal from 21 June. You won't don't need to redo any checks that you made using the temporary measures (provided you did so properly).
- Shielding has been paused again – while those who have been told they no longer need to shield are no longer eligible for statutory sick pay, the government has confirmed that they remain eligible to be put on furlough and claimed for under the Coronavirus Job Retention Scheme.
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