In our wellbeing podcast, we spoke to Woodfines Solicitors to discover what employers need to know to ensure they are following legal requirements surrounding health and safety as employees return to the post-lockdown workplace.
Here are three of the key things we learned from the podcast.
Coronavirus symptom checks are not required, but consent is
An employer has health and safety obligations towards its employees, but it is arguable whether temperature checks can be part of a series of measures that assess employees to protect health and safety in a pandemic. And it is not a measure currently recommended by the government or the World Health Organisation.
When bringing in checks employers must consider employee consent, and visitor consent if it will apply to them as well. Consent is required as otherwise this could be a fundamental breach of contract and taking action without consent can be deemed as assault.
If employers choose to conduct symptom checks, they should communicate why it is necessary and they want to do it. Employees and visitors might feel reassured that the business is taking steps to protect their health and safety, so might be quite happy to give consent.
They also need to consider, from a discrimination perspective, that all the checks are applied consistently to all employees, workers, or visitors – only testing certain groups who perceived to be at higher risk could potentially lead to discrimination claims.
The ICO has issued guidance on workplace testing that may also be helpful to employers from a data protection perspective. The guidance advices that employers should ensure that they don’t collect and unnecessary or excessive information and that employers will probably only require information about the test result rather than details of any underlying conditions and they should only collect results that are necessary and proportionate.
Symptom checking has data privacy implications
Employers must also think about data protection. Health information is a special category of personal data, and a data controller can only process that data on certain grounds. This will require consent again, in relation to data protection, not just in relation to carrying out temperature checks.
Employers need to consider on a practical level, how they are going to do those temperature checks. Will they do them themselves? Or will they use an occupational health professional to do them? If they decide to use the latter, then there is a health exemption under data protection legislation GDPR. This enables occupational health professionals to process data relating to health where that processing is necessary for the purpose of preventative or occupational medicine, or for the assessment of the working capacity of the employee medical diagnosis, or management and treatment. It only applies to occupational health professionals who are subject to confidentiality obligations.
Before carrying out any testing, employers should also inform staff about what personal data is required, what it will be used for, who it will be shared with, how will it be kept, and what decisions will be made based on the test results.
Health and safety concerns must be dealt with correctly
It’s not just the risk of whistle-blowing claims if employers don’t take health and safety seriously in a post-lockdown work environment. Employees also have rights not to be dismissed or treated detrimentally if they raise health and safety concerns.
Firstly, to avoid complaints, and certainly then to avoid any claims, the employer should ensure that they comply with health and safety regulations and their duty of care towards their employees. Employers have a duty of care for the health and wellbeing of their employees under health and safety legislation.
Secondly employers must deal promptly and comprehensively with any complaints that are raised. So, if an employee does raise a complaint, then the employer should take steps to investigate it, take it seriously, and also take steps to address the concerns. What they shouldn’t do is treat that employee adversely because they’ve raised those concerns. They should also ensure that others don’t either, because the employer can be vicariously liable for the actions of other employees.
If an employer doesn’t take things seriously, then employees have the option of report issues to the Health and Safety Executive, which could cause all kinds of trouble for the employer.
More legal insights for logistics employers
This is just a few of the key points covered in the recent podcast with Woodfines Solicitors. To learn more about what employers need to know as employees return to the workplace, both in terms of practical considerations, employment law and health and safety, listen now or download from your usual podcast platform.