Covid - Enforcing Covid Testing

A couple of months ago, we covered the subject of whether or not businesses and organisations could mandate that employees receive the Covid vaccination. It was the hot topic at that time and you can see that post, and watch the presentation from our consultant Owen Lee here https://hrchampions.co.uk/covid-19/covid-the-vaccine-conundrum-277

Since then, the conversation has moved on and the latest question echoing around employers seems to be “Can I insist that employees take a Covid test?”.

Interestingly, this question is a little more nuanced than the vaccination question, and there’s no clear yes or no answer. Some may argue that stipulating a testing regime could be seen as invasive on a personal level, or potentially non-enforceable from a contractual point of view. There are fair arguments on both sides of the table, so it calls for a balanced approach.

Employers have a duty of care towards all of their employees and creating a safe working environment comes pretty high up the list. Lateral Flow tests are now free to order on the NHS and so as part of your return-to-the-workplace programme and/or your ongoing Covid safety regime, you might ask employees to test themselves on a regular basis. Perhaps a couple of times a week before putting themselves in a position where they will come into contact with colleagues or customers.

We would expect most employees to accept that some form of testing schedule may become part of our way of life, at least for a while, and so accept it in good spirit. Issues may arise however if staff members insist that they do not want to self-test or if you make testing, and returning a negative result, a conditional element of coming to work.

Making testing compulsory opens the “change of contractual terms” can of worms. If testing isn’t in your employees’ contracts, and it probably won’t be if you don’t work in care, making it conditional would be a change of terms for which a period of consultation would be required. You may already have a drug and alcohol testing policy in your staff handbook, but testing for infection is somewhat different.

As already mentioned, most people will understand and graciously accept self-testing, but what happens if they forget, run out of time or run out of tests? Is it acceptable to stop an employee coming to work because they were running late or had to drop the kids off before their test result had fully developed?

You could keep test kits at the place of work, but consider that you may have to pay staff whilst they sit idly around waiting for the results?

You may have members of your team who have to visit clients’ premises; engineers or delivery drivers perhaps. If your clients are insisting on negative tests before coming on site, you’ll probably be in a stronger position to enforce. There has already been a widely publicised case where a delivery driver was deemed to have been fairly dismissed after he failed to wear a mask when making a delivery to a Tayte & Lyle site.

Refusal to test then may mean you are unable to provide work for your employees leaving you with little option but to consider dismissal.

For those staff who usually work at a single premise such as an office or factory, it may be more difficult to insist upon testing where you have no recourse for refusal to test. Staff could work from home where that is practical, but is that fair on colleagues who may also prefer to work from home? You may also have staff who refuse to work with non-testers, exacerbating an already fraught position.

The deeper we delve for an answer, the more questions we seem to unearth. As with the vaccine question, encouraging staff and reaching an agreement to test is going to be the best approach. However there will always be a handful of cases where it’s less straightforward or individuals refuse to test because it enables them to manipulate a situation to their own advantage.

If and when this happened, we recommend make a judgement on a case by case basis. We’re here to help with that of course. Just call us on 01452 331331 or e-mail This email address is being protected from spambots. You need JavaScript enabled to view it.