Employment : No testing? No job

Article by

Craig Donnelly

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The coronavirus pandemic may now be behind us but cases related to it continue to come before the Employment Tribunal. Cases already decided have related to the need for employees to be vaccinated, whistleblowing over unsafe working practices, and employees refusing to return to the workplace. I recently appeared for an employer in a claim for unfair dismissal by an employee who refused to take lateral flow or PCR tests.

Our client is a specialist provider of care services to vulnerable young people. The claimant’s role, as child and youth care worker, required him to have close physical contact with its service users and colleagues. It was accepted that the claimant could not carry out his role remotely.

It came to the employer’s attention that the claimant had not been testing despite it being a requirement under their coronavirus policies. In the disciplinary process that followed, the employee claimed to have genuinely held beliefs over the need for tests, their efficacy and safety, and argued he was under no legal obligation to take the tests. The employer dismissed the employee after finding his conduct represented a risk to their service users and other employees.

The tribunal
The claimant argued that his refusal to test was not a sufficient ground for dismissal. The tribunal considered the employer’s duty to ensure the safety of its staff, service users and third parties and that allowing the employee’s refusal to test created a risk. The tribunal took into account the employee’s rights, including his rights to bodily integrity. The tribunal observed that the employer had to balance these potentially competing rights and obligations. It also had to consider the impact of the claimant’s conduct upon others, particularly given the risk the virus created. In the absence of any way to assess the risk created by the claimant's stance, and the claimant being unable to show how his rights could reasonably be accommodated within the employer's obligations, the decision to dismiss was held to be reasonable.

Wider application
The decision illustrates the challenges that faced employers during the pandemic. But it also shows the difficulties employers can face in balancing employees’ rights with their wider obligations. There may be cogent and genuine reasons for why an employee chooses to act in a particular way. However, if the risks created by the employee's conduct cannot be reasonably accommodated within the employer’s obligations, then the employer will be entitled to dismiss the employee.

We deal with a range of employment disputes for employees and employers. If you require assistance, contact Karen Condie or Craig Donnelly for an initial discussion.