There have been a number of recent press reports which have suggested that businesses may introduce policies which require their employees, or prospective employees on recruitment, to have the COVID- 19 vaccine. This has been described as “no jab no job” and businesses leaders such as Pimlico Plumbers CEO, Charlie Mullins have already said that they will adopt this policy in their business.
In our article on “no jab no job” policies we cautioned against the adoption of this approach due to concerns that it could be considered to be discriminatory – at least until the vaccine was uniformly available to all sections of society.
In the interim many businesses will wonder how they can overcome the challenge of getting employees back to work as safely as possible when lockdown is lifted. Refusing to employ workers who have not been vaccinated seems risky in the short term but the situation could be different if employers were to adopt a "no test no job" policy. Employers could require employees to undergo COVID-19 testing regularly, possibly daily in some cases and exclude workers with positive tests from the workplace.
COVID-19 lateral flow antigen tests have become more available to employers and these provide rapid results which confirm positive or negative status. The Government have announced that English registered businesses which employ more than 50 employees who cannot work from home can register for free supplies of lateral flow tests (“www.gov.uk/get-workplace-coronavirus-tests”). It is expected that the Government may announce a shift to adoption of lateral flow tests in order to re-open hospitality and major sports events over coming months.
Lateral flow tests are convenient to administer and provide results in approximately 30 minutes. Employers could provide a quantity of these tests to all employees and require them to self-administer the test prior to coming into work, or calling in sick if the test is positive. Theoretically the tests should identify the estimated 33% of infected workers who are asymptomatic, prevent them from attending at work and thereby reduce the risk of the virus being transmitted in the workplace. Employers have a legal obligation to provide employees with a safe place of work and mass testing may well be a reasonable step to complying with that obligation.
Testing would allow employers to remove infected workers from the workplace and remove the risk that they could attend at the homes of customers. A business adopting a “no test no job” approach may be able to advertise that their employees were tested negative for the virus before being exposed to customers thereby gaining positive PR as well as protecting workers. This type of testing may also be relevant for businesses in the food manufacturing sector where workplace hygiene is seen as critical to product quality. It will be interesting to see which businesses adopt this approach and steal any marketing advantage from their competitors.
In circumstances where lateral flow tests are made available to all employees the risk of a detriment to particular groups of workers would be avoided. It seems unlikely that there would be any objection to the use of lateral flow tests from particular religious or ethnic groups and there has been no reports of any health concerns about the use of the test. The risk of an indirect discrimination claim in these circumstances seems very low. Any business which wished to adopt a policy of lateral flow testing would need to consider how this would be “policed” with employees. While it is unlikely the employment contracts will contain a term which specifically addresses testing it seems likely that an Employment Tribunal would regard a refusal to take the test as a refusal to accept a reasonable instruction which could be a lawful basis for disciplinary action. We would recommend that businesses should support this by rolling out communication with their employees explaining the need for testing and the importance of testing to employee welfare. It may also be appropriate to identify that a failure to undertake testing, or a failure to comply with sickness policies in the event of a positive test would be considered to disciplinary issues.
The universal adoption of testing seems to be attractive and the major risk with this policy may be the reports of inconsistent test results. Within the past few weeks the British Medical Journal has carried articles suggesting that the Government should avoid reliance upon lateral flow tests due significant levels of false negative results in testing. It may be that as lateral flow tests are more widely adopted the technology will improve and the results will become more reliable.
If you have any queries about these suggestions, or the management of employees with the virus please do not hesitate to get in touch.
The opinions in this blog form a general overview of the law and its application. You are advised to seek specific legal advice for individual cases as each will be highly fact-specific and the current COVID-19 pandemic presents its own unique and untested legal challenges.