In light of the most recent Government announcement to gradually ease the current lockdown restrictions, we are anticipating an increase in the number of employers wishing to implement their own scheme of Lateral Flow (LF) testing. Workplace testing is becoming more common across the country due to the delivery of substantially faster results than the orthodox national/community testing methods and is becoming par for the course in some public sector services such as healthcare and education. Before these schemes can be set up by employers, there are a number of practical considerations that must be taken into account, to ensure that the LF testing of employees could be defined as a proportionate response to dealing with the ongoing Covid-related risks in the workplace. One of the most contentious issues which employers may be required to acknowledge is whether their LF testing programme will be voluntary or mandatory.
According to Government guidance, whether the programme will be voluntary or mandatory is solely at the discretion of the individual employer. However, for the majority of employers across the UK, with the exception of those who can justify it as being ‘mission critical’, it may be difficult to show that continuous testing could be a regarded as a mandatory requirement of employment.
On the contrary, an employer may be able to garner support amongst their staff for a mandatory LF testing programme. They could achieve this by emphasising that testing is a necessary and proportionate means of limiting a Covid-19 outbreak in the workplace, which could result in its closure and threaten jobs and livelihoods. Following this reasoning, businesses may seek to make testing a contractual obligation. If the obligation to be tested is validly incorporated into the employee’s contract, failure to comply would be a breach, which may lead to disciplinary action against the employee. In this instance, employers would need to hold a consultation with their employees or recognised trade unions to reach an agreement on the implementation of making continuous testing a contractual obligation: they cannot just unilaterally impose new conditions of the contract.
There are likely to be fewer practical concerns for an employer to deal with if they decide to implement a voluntary rather than a mandatory testing programme. While there may be more flexibility in the approach, it is important to ensure employees are fully informed of how the test will be carried out and the required follow-up procedure. Communication with staff is key and should alleviate employees’ concerns so that they agree to participate in the scheme.
Employers should encourage their staff to participate where possible but should ensure that they do not inadvertently rebuke or ridicule unvaccinated staff, particularly where this could amount to harassment because of the protected grounds under the Equality Act 2010. Employers should also be aware of the arguably limiting effect of only some, and not all, staff undergoing regular LF tests and factor this into their decision on whether to undertake LF testing at all.