Covid-19: Legal implications of identifying immune workers
Rachel Crasnow QC
Employers are makingdifficult choices at this time in situations which have never affected theirworkplaces before. Employment Lawyers are having to advise in a context wherethe landscape is changing day by day. As fresh guidance is issued and newheadlines emerge, the next legal queries evolve. This blog by Rachel Crasnow QC is the fifth in a series toexamine how the interplay between the workplace and the corona virus leads tonovel problems for equality lawyers. Inthis post, Rachel examines future conundrums raised by the incoming antibodytest which will identify who is immune to Covid-19.
An antibody test which allows anindividual to know if they have already been infected with the Sars-CoV2 viruswhich causes Covid-19 is said to hit our (Amazon) shelves soon. It reacts to the presence of antibodies in theblood which show the immune system has responded to the coronavirus. Sincepeople are usually immune to the virus once they have had symptoms, this isgood news for employers, as employees can demonstrate they are free frominfection and thus return to work. Suppose food outlets are allowed to fullyreopen and those who have positive results from an antibody test are permittedto work there in public-facing roles. The workers who are immune will probablybe back at work and on their usual pay far earlier than those who are currentlyill, or may become unwell in the future, or whom for whatever reason cannotaccess the antibody test. In otherwords, the test may well lead to a “segregated” workforce.
What will the impact of the testbe on employment law and the principle of non-discrimination?
Disabilitydiscrimination
Disability is a protected characteristicfor the purposes of the Equality Act 2010 (EqA) by virtue of section 6 whichdefines disability as a physical or mental impairment which "has asubstantial and long-term adverse effect on [a person's] ability to carry outnormal day-to-day activities". The concept of “a long-term effect”means having Covid-19 is unlikely to qualify under section 6, even if the physicalimpairments caused by the virus are indeed substantial, since at present itappears that the effects of the illnessdo not last at least 12 months or are likely to last at least 12 months (seeEqA 2010, Sch 1, para 2).
But more importantly, in the context ofa test which identified immunity, the most likely basis for less favourabletreatment is not yet having had Covid-19. In this scenario, there would be no impairment and so no disabilityangle.
But, there is an alternative analysishere which is that the individual might not have become immune either becausethey have a disability which means they have been self-isolating for a longperiod of time or they live with someone who is in this position. In those circumstances, there may be anindirect disability angle arising from the individual’s disability or due to anassociation with a disabled person. Theextent to which the justification defence could then be satisfied would behighly fact specific and would depend to a large extent on the prevailingmedical advice and the nature of the workplace. Equally, there might be a requirement to make reasonable adjustments forsomeone who was disabled where the disability has given rise indirectly to a lack of immunity, i.e.allowing them to return to work but on a home working basis, even if immunestaff were back at work. For similarreasons, there may be scope for a s.15 claim under the EqA.
Article 14 &public sector workers
The position is even more nuanced in thepublic sector.
Article 14 readsas follows: "The enjoyment of the rights and freedoms set forth in thisConvention shall be secured without discrimination on any ground such as sex,race, colour, language, religion, political or other opinion, national orsocial origin, association with a national minority, property, birth or otherstatus”.
Public sectoremployers, who have to make decisions in accordance with the Human Rights Act1998 could fall foul of Article 14 if “other status” was accepted asincluding not (yet) possessing a positive antibody test or being other than immune.
Article 14 is not aself-standing right that prohibits discrimination, since it only applies in sofar as the enjoyment of other Convention and Protocol rights are affected. Here,Article 8 which protects the right to respect for private and family life is alikely source of rights. Firstly although there is no general right toemployment or to the continuation of employment (Fernandez Martinez v Spain(56030/07) (2015) 60 EHRR 3), the notion of “private life” may include businessrelated activities. Restrictions imposed on access to working in particular tospecific professions have been found to affect “private life” (Sidabras vLithuania (55480/2000) (2006) 42 EHRR 6, [2004] 7 WLUK 752, § 47). Antibodytest results amount to a factor intrinsic to one’s private life, which mayimpact on existing or future employment. Secondly, the concept of a privatelife encompasses the right to form and develop relationships with others,including those of a professional or business nature (Volkov v. Ukraineno. 21722/11, ECHR 2013, §165). During a lockdown many are deprived of theopportunity of developing relationships with the outside world (see Niemietzv. Germany A/251-B (1993) 16 EHRR 97, §29), but when that opportunity iscurtailed on discriminatory grounds, Article 14 combines with Article 8 to giverise to a potential challenge.
In Novruk v RussiaAppl No. 31039/11 (2016) 63 EHRR 19 the European Court of Human Rights heldthat “other status” in Article 14 included health status related to HIVinfection. This would further suggestthat not (yet) possessing a positive antibody test or being other than immunewould amount to “other status”. Indeed, in I.B. v Greece, (552/10)ECtHR, 3 October 2013, an HIV-positive Claimant’s health status was found tofall within Article 14 despite his working capacity not being impacted byhealth issues (§86). So Article 14 mayencompass the status of lacking a positive antibody test despite havingno symptoms (which would prove fatal to establishing disability under section 6EqA).
It is uncontroversialthat the list in Article 14 is not static. Although the concept of a “status”must entail a “personal” characteristic, there is no requirement thatthe characteristic should be innate, inherent or exist independently from thecomplaint: see Clift v UK The Times, 21 July 2010. Recently the Supreme Court in Gilham v MOJ[2019] ICR 1655 confirmed the broad nature of the “other status” label, findingthat an occupational classification is clearly capable of being a “status”within the meaning of Article 14. If a classification relating to work falls intothat bracket, why not a classification relating to the presence or absence ofan antibody?
If a breach of theseprovisions was established, the question of justification would be determinedon a case by case basis. Of key importance would be the scientific evidence andcurrent data going to what the test results showed, statistics concerning the prognosisof contagion and the predicted status quo at the time the employment inquestion was due to commence.
It follows that it would be short-sighted to assume that justification forpreferential treatment based on a positive antibody test would always be madeout.
Sexand age discrimination
Given the present suggestion that more men than women arefalling prey to Covid-19, it may be that gender becomes a basis for challengingthe use of testing to determine access to the workplace through the prism of anindirect claim. In such circumstances would a female applicant for a job who couldeither not access an antibody test due to a lack of symptoms or whose test resultwas negative, argue that the requirement to present a positive result had anadverse impact upon her (and that women could show a group disadvantage), sincemen had had the virus more often or perhaps were selected for testing moreoften? Again, the outcome of a justification exercise would depend on thescientific data available. Surely it would be difficult to maintain an argumentthat testing was offered to the group more likely to have had the virus in sofar as this led to a gender imbalance when it came to returning to work?
Older people have generally been self-isolatingfor longer than the under–70s. This maymean they have had less access to the virus and will not have built up immunityat the same rate as the younger community. Would it be justifiable to reject a 70-year-oldapplicant for a job because she did not have this immunity following anantibody test owing to her rigorously following Government advice? It seems that blanket denial of access totesting, rather than using the test’s objective (such as securing healthyworkers to interact with the public) as a criterion, is likely to beproblematic.
Implied term oftrust and confidence
Can an employerdemand that its workforce undergo testing? Could it make decisions based purelyon test results? The instinctive answer is yes, bearing in mind the currenturgency to control the spread of the Sars-CoV2 virus. But the circumstances ofeach scenario will be determinative.
The contract ofemployment is unlikely to include a clause providing the contractual basis foran instruction to comply with testing. But whilst an employer may have noexpress contractual power to require an employee to be tested, in theexceptional circumstances of the current health crisis, the implied duty oftrust and confidence would probably provide the employer with the right toissue an instruction that employees should be tested, unless the need is notapparent (such as a publishing house whose employees can work and meet remotelyand have no need to leave their homes). Of course, the implied term is mutual.In a workplace where there is a risk of infection, an employee who refused tocomply with a reasonable instruction to be tested would breach their own dutyof trust and confidence and their personal duty under the Health and Safety atWork Act 1974 to take care of their own health and safety as well as that oftheir colleagues and possible service users (such as patients in a hospital).
Do circumstances exist where an employeemay resign and claim constructive dismissal if they consider their employer hasnot taken reasonable steps to ensure their safety, by failing to test themwhere testing facilities exist, or by making detrimental decisions relating totest results where there is no immediate concern about infection? It is easy toimagine situations where employers apply the same instructions to all theworkforce without distinguishing between different roles. However, in workplaces where employees need tointeract with one another or the public it would be difficult to establish a repudiatorybreach of the mutual term of implied trust and confidence owing to the severeneed to stem the flow of contagion.
Unfair dismissal
If employees are dismissed for not beingimmune or declining to take a test, the complaints of unfair dismissal seembound to fail in relation to workplaces where testing is necessary to enable abusiness to continue to operate safely or where a need exists for key workers towork without infecting others especially vulnerable service users. How can itbe outside for the range of reasonable responses to require the workforce to betested in such circumstances? The more difficult cases will arise in relationto a failure to offer testing or only testing a random selection of the workforce.Employers should be able to back up their decisions to dispel workers’concerns. Transparency and consultation about choices for testing will go along way to strengthening a defence to a complaint of unfair dismissal.
Is the position different in relationto future roles?
The analysis above looks at the presentpicture but suppose a school is recruiting for a teacher to commence work inthe future, say next September. Should aresult to an antibody test be relevant to suitability for work many monthsahead?
A prospective employee might argue that the post should be offered on the merits at this stage, conditional upon a positive antibody test a month before commencing the role (just as a good reference can be part of a conditional job offer). A public sector candidate can rely on the HRA angle discussed above, but outside this sector, a prospective employee would need to find a discriminatory angle to bring a Tribunal complaint concerning job rejection based on test results or lack of them.
Conclusion
The question of selection for testing is a real and pressing one. Whilstit may be possible in theory for anyone to purchase a Covid-19 home test fromBoots or Amazon, because the initial order is only for 3.5 million tests, thisis insufficient for the entire UK population. It might be naïve to assume thatthe targeting of tests at key workers will be without conflict. “immunity passports” are going to be acontroversial issue. The fragile economy will put great pressure on the uneasybalance between supply and demand of these tests, making it all the moreimportant that decisions about access to testing are made with care and on alawful basis.