Anna Dabek, a partner in the employment and pensions scheme at Anthony Collins Solicitors, shares her advice on what home care providers should do if their employees refuse to take a COVID-19 test.
The Department of Health and Social Care (DHSC) has announced that home care workers in England will be able to get weekly testing for Covid-19.
Although this is very positive news and should be received by care workers with relief, many providers are already considering how they will manage situations where their staff refuse to take a COVID-19 test.
Some care workers may seek to argue that to require them to undertake a test is against the Human Rights Act. Providers, however, have a duty of care towards their employees and the people they support which includes taking reasonable precautions to protect them from communicable diseases.
Given the health and safety duties, providers should have a risk management strategy in place for managing COVID-19 risks and this should set out the role that testing plays in reducing the rate of COVID-19 transmission.
The testing should be the key component of managing the risk and the Government is clearly expecting all care workers to be tested. Although mandatory testing may amount to an infringement on the right to a private life, with a clear risk management strategy in place, a court is most likely to consider it is a legitimate course of action to protect public health.
Refusing to take a test is therefore likely to be a potentially fair ground for taking disciplinary action, including dismissal. Providers however need to be careful to explore the employee’s reasons for refusal and decide whether those reasons are reasonable in the circumstances. A fair disciplinary process will also of course have to be followed.