Coronavirus Tests – Risks

Many employers, and particularly those in sectors such as healthcare and manufacturing, are introducing coronavirus testing to keep their workforce safe. However, something often not considered is the tax position and whether you can ask employees to have a test if they don’t agree to this. Most would assume that the test was classed as a health and safety expense. We look into the position of this below.

Data Protection

Generally, unless you have contractual consent, you will need the express consent of your employees to test them. This falls under ‘sensitive data’ under the General Data Protection Regulations and you should make sure you have carried out a Data Protection Impact Assessment.

The Information Commissioner’s Office says:

Your DPIA must: describe the nature, scope, context and purposes of the processing; assess necessity, proportionality and compliance measures; identify and assess risks to individuals; and identify any additional measures to mitigate those risks.”

Your rationale for undertaking tests must be justified under one of the lawful reasons for processing the data, and there must be an additional lawful condition to process data of this kind due to its sensitivity.

Employment Law

You should get specialist advice if this is something you wish to introduce as there could be employment law considerations which breach the employment contract. Please remember that just because you don’t have a contract written down, it doesn’t mean one doesn’t exist. This is often a misconception that many employers have. You also have a legal duty to provide certain key terms in writing to employees by day 1 of their employment.

Tax Position

The guidance from HMRC originally stated that coronavirus tests paid for by employers would be considered as a benefit in kind and would therefore by liable to taxation. The official position on this has since changed, and the guidance now says:

“Coronavirus tests provided by the government, as part of its national testing scheme, are not treated as a benefit in kind for tax purposes. 

If you’re providing antigen testing kits to your employees, outside of the government’s national testing scheme, either directly or by purchasing tests that are carried out by a third party, no Income Tax or Class 1A National Insurance contributions will be due.”

This is, no doubt, a welcome change for employers and employees!

Flexible Working Requests

The pandemic has resulted in many employees being quickly enabled to work more flexibly from home, with the increased benefits of reduced commute times, travel costs and lunch purchases, it’s easy to see why this has been perceived as a benefit by many employees.  Are employees able to insist that they remain working from home?

The Legal Position

Employees with at least 26 weeks’ continuous employment have the right to make a request for flexible working, which could include working from home.   If you receive a flexible working request you must deal with it reasonably so as not to breach the implied term of trust and confidence.  There are 8 lawful grounds to refuse a request, and employees are able to challenge this at a tribunal should they believe there are other reasons at play.   It will certainly be harder for employers to argue that working from home is no longer possible when offices can accommodate more people, if they have worked effectively from home before.  Employees can only put one flexible working request in every 12 months so it is worth bearing this in mind if you have a persistent employee.

The Future

The government have spent time recently encouraging people to go back into the office if it is safe to do so, but they appear to have no plans to make working from home a statutory right.  That’s not to say this won’t be introduced in future years though, so it is easier if you are able to adapt to it earlier on.

Diary Dates

1st September 2020

Changes to the furlough scheme – the government will pay 70% of wages up to a cap of £2,187 for the hours an employee is on furlough and employers will pay employer National Insurance Contributions and pension contributions for the hours the employee is on furlough. In addition to this, employers will need to contribute 10% to furlough pay for employees. Employees cannot be asked to accept 70% on the furlough scheme.

15th September 2020

This is the last recommended date for conducting collective consultations for 99 or more employees, for a minimum of 45 days prior to the end of the Coronavirus Job Retention Scheme on October the 31st 2020.

Case in focus

Gwynedd Council v Barratt 2020

The Employment Appeal Tribunal (binding on other Employment Tribunals) has held that a requirement for employees to interview during a redundancy process rendered their dismissals unfair.

What happened?

During a reorganisation, the employer conducted an interview process for the available jobs instead of an objective scoring matrix to select teachers for redundancy.  This essentially made them have to interview for their current role.  There was no consultation over the proposals and no appeal against dismissal was offered.  Ms Barratt was dismissed as a result of this process.

The Hearings

The employment tribunal found in favour of Ms Barratt.  However, Gwynedd Council appealed, arguing that the tribunal had applied earlier case law guidelines too rigidly.  The Employment Appeal Tribunal dismissed their appeal.  It held that the dismissal was indeed unfair and that this type of process will only be appropriate in a “forward thinking” situation involving new posts.  There was also the need to apply fairness, requiring the employer to go through a proper consultation process, allowing an appeal.  Neither of which happened in this case.

Takeaway points

  • Keep good records throughout an employee’s employment history.
  • Consider a wide array of options and alternatives to redundancy – which normally form part of a consultation process.
  • Don’t fall back to interviewing as your default position if there is a genuine reduction in headcount which is required.
  • Offer an appeal.

Ask the Experts

We have an employee who has travelled abroad to visit relatives, and he has asked for a further extension of time because he can’t come back yet.  We can’t keep his position open forever, what do we do?

Answer: If he’s stranded abroad because of Covid-19, it’s likely to be unfair (if he has 2 years’ service) if you discipline him for failing to return to work.  Assuming he’s on unpaid leave, the safest option would be to extend this.  If he can organise travel home in the next couple of weeks but just doesn’t want to return, you could say you can’t extend the leave and will treat any continued absence as unauthorised.  If he refuses to return, you could launch disciplinary action.  If he has to quarantine upon his return, and he can’t work from home, then this would be unpaid leave.

Can I make employees on furlough use their holiday leave?

Yes you can, on the condition that this is either in the contract, or you serve twice as much notice as the time you want them to take.  You must pay furloughed employees their normal rate of pay for a period of holiday, rather than any reduced amount you pay to employees during furlough.  It is better to put this into writing so all parties are clear.  Please contact us if you would like a letter as part of your retained service with us.

Flexible working in the digital era webinar

We are holding our July webinar on Friday 24th July at 12:30 on the topic of Flexible working in the digital era.

This will cover:

  • How to manage remote employees
  • Flexible working requests
  • How to use Zoom
  • Legal & Safety obligations

We will close with a Q&A session followed by an exclusive after party for all our HR retained clients.

If you’d like to join us please sign up here.

Could we also add the contact details for the payroll clients please: “If you need any HR support please contact us on: or 01522 815100”

Flexible working in the digital era webinar

We are holding our July webinar on Friday 24th July at 12:30 on the topic of Flexible working in the digital era.

This will cover:

  • How to manage remote employees
  • Flexible working requests
  • How to use Zoom
  • Legal & Safety obligations

We will close with a Q&A session followed by an exclusive after party for all YOU; our HR retained clients.

If you’d like to join us please sign up here:

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