Employers have no statutory powers to insist that a test is taken in any circumstances, including where a worker has symptoms. In these cases, the workers should be encouraged to follow government guidance to have a test and seek further advice from NHS 111 online.
There may already be, or an employer may look to introduce, a contractual requirement for a worker to take a test but they cannot be physically forced to take the test and will need to consent to the test. Please contact our Employment Specialists at the Helpline if you are thinking about introducing a contractual clause.
Where there is no contractual clause requiring a test, in some cases it may be a reasonable instruction from an employer on the basis of health and safety that a worker takes a test, especially where the worker has symptoms. If the worker does not have any symptoms the employer will need to demonstrate that testing is reasonable under the circumstances considering the nature of the work, and what other measures are in place to ensure the workplace is COVID-secure.
Some workers may be less willing to agree to testing, especially regular testing, for fear that if they do test positive (when they are asymptomatic), they will then have to self-isolate. If they are not able to work from home or there is no entitlement to full sick pay this can have financial consequences for them. There is no obligation on employers to pay full sick pay in the absence of a contractual entitlement, or to top up any entitlement to SSP where an employee must self-isolate, but employees may be more willing to cooperate where there is less financial risk to them.
Throughout the pandemic it has been crucial for employers to communicate with their workers and this is another situation where this is particularly important so that employers can explain why they consider workplace testing to be necessary and workers can raise their concerns and reasons for refusing to take part.
