Rapid COVID-19 testing has been hailed by the Health and Social Care Secretary as vital for our roadmap out of lockdown. In a similar vein, the government has introduced a workplace testing scheme in England under which employers are eligible for free lateral flow tests until 30 June 2021 and home test kits where it is not possible to set up on-site testing.

In a survey we ran recently of 93 organisations, while the vast majority of surveyed employers were not considering mandatory vaccination, 33% were planning to offer, or already offering, workplace testing, while 44% were considering making workplace testing compulsory.

There are a few options available to employers who wish to make testing mandatory. The most common approach would be for an employer to introduce a mandatory testing policy. However, some employers are opting to alter the terms and conditions of their employees to make testing a requirement of their contract. As with any other change to contractual terms, this would require consent from all affected employees, failing which dismissal and re-engagement could follow.

However employers introduce mandatory testing to the workplace, they should ensure that they talk with either staff, the recognised trade union or employee representatives before any policy is implemented. These discussions should cover how testing would be carried out, how staff would get their results, as well as the process to be followed if someone tests positive, including payment during isolation and absence recording, and the data protection issues arising from testing.

Risks of mandatory testing: unfair dismissal

If an employee refuses to take a test and their employer chooses to dismiss them for failure to adhere to their policy or contract, the biggest risk that the employer runs is a claim for unfair dismissal.

An employee's refusal to undertake testing could amount to a failure to follow a "reasonable management instruction" which an employer would seek to justify as a potentially fair reason for dismissal. In such cases, a tribunal will look at the facts of the case to consider whether the dismissal was fair in all the circumstances. Factors that a tribunal is likely to consider are:

• whether the employee was allowed to explain their reasons for refusing the test;
• whether appropriate consideration and weight were given to any explanation provided by the employee for refusing to take the test;
• whether it was possible for the employee to carry out alternative work, or be reallocated, so that they were not required to take the test;
• whether the test was an attempt by the employer to avoid its own responsibilities (for example, if the employer refused to make the workplace COVID-19 secure or enforce social distancing, by instead insisting employees get tested); and
• whether the testing requirement was reasonable in all the circumstances (for example, does the employer's risk assessment support the need for testing?).

Risks of mandatory testing: discrimination

Introducing a blanket mandatory vaccination policy gives rise to a relatively high risk of discrimination claims. Employees could claim discrimination from such a policy based on a number of protected characteristics such as age, sex (particularly with regard to pregnancy or maternity), disability, religion or belief. By contrast, it is much less likely that an employee would be able to claim that a blanket mandatory workplace testing policy is discriminatory. This is for three primary reasons: (i) there are no groups with protected characteristics (or otherwise) which the government excludes from or advises against testing; (ii) the valid religious objections or disabilities that would prevent vaccination do not apply to testing; and (iii) there does not appear to be any data currently to suggest any particular ethnic minority (or other protected group) is "testing hesitant" (which contrasts to the data available showing vaccine hesitancy in some groups).

Risks of mandatory testing: payment during isolation

If an employee tests positive for COVID-19, they will be required to work from home and not come into the workplace. If an employee is able to work from home and is fit to do so, then they should be paid in the normal way. If an employee is not able to work from home, then they will be entitled to receive statutory sick pay (currently £98.85 per week) provided they earn at least £120 per week and are off for at least four days in a row. It is possible some employees may also be eligible for a one-off payment of £500 from the Test and Trace Support Payment Scheme.

Whether an employee is entitled to any additional company sick pay will depend on the terms of the employee's contract or the company sick pay policy. Asymptomatic employees are likely to fall outside company sick pay policies as they are not actually absent due to sickness, but this is likely to depend on the wording of the policy. A policy which covers incapacity as well as illness may be wide enough to cover asymptomatic employees.