If there’s no contractual clause to be tested, you will have to rely on the implied duty to obey an employer’s reasonable instructions and your obligations under the Health and Safety at Work etc Act 1974 to ensure the health, safety and welfare of staff and others.

An employee’s refusal to comply could be treated as misconduct for failing to follow a reasonable management request, as well as failing to comply with their own health and safety obligations. Accordingly, you could argue that it’s a reasonable management instruction to be tested, although that will be very dependent on the circumstances.

A disciplinary process may be started where an employee unreasonably refuses to take a COVID-19 test where such a request is reasonable. However, much depends on the overall context of each individual case. The risk of disciplining an employee should take into account the nature of the workplace, what the employer’s own risk assessment states in respect of testing being necessary, the reasons for the refusal, any local outbreaks, whether there are particularly vulnerable colleagues, the extent of risk and whether it can be mitigated. In effect, your need for the employee to take the test has to be balanced against the reason for the employee’s refusal.

If the employee has symptoms, you may be justified in taking disciplinary action to protect the health and safety of others. However, the reasonableness of a refusal is more complicated if the employee has no symptoms. You may be able to reasonably request that they take the test for COVID-related health and safety reasons where those concerns can’t reasonably be addressed through other methods, such as social distancing. For example, where someone works in a care home, the employer’s request is likely to be considered reasonable.

Another issue to consider is whether Article 8 of the European Convention of Human Rights, which protects the right to private and family life, is triggered. The right for an individual to choose whether to undergo a test might fall within this right. It is possible to interfere with this right “in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. Therefore, if there is real need to protect health or economic wellbeing, that may be capable of overriding the Article 8 right to private life. It requires a careful balance between the rights of the individual and employer (which could also include the service users of the employer).

Further guidance regarding workplace testing can be found on the Acas website.