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!