Employers are making difficult choices at this time in situations which have never affected their workplaces before. Employment Lawyers are having to advise in a context where the landscape is changing day by day. As fresh guidance is issued and new headlines emerge, the next legal queries evolve. This blog by Rachel Crasnow QC is the fifth in a series to examine how the interplay between the workplace and the corona virus leads to novel problems for equality lawyers.  In this post, Rachel examines future conundrums raised by the incoming antibody test which will identify who is immune to Covid-19.

An antibody test which allows an individual to know if they have already been infected with the Sars-CoV2 virus which causes Covid-19 is said to hit our (Amazon) shelves soon.  It reacts to the presence of antibodies in the blood which show the immune system has responded to the coronavirus. Since people are usually immune to the virus once they have had symptoms, this is good news for employers, as employees can demonstrate they are free from infection and thus return to work. Suppose food outlets are allowed to fully reopen and those who have positive results from an antibody test are permitted to work there in public-facing roles. The workers who are immune will probably be back at work and on their usual pay far earlier than those who are currently ill, or may become unwell in the future, or whom for whatever reason cannot access the antibody test.  In other words, the test may well lead to a “segregated” workforce. 

What will the impact of the test be on employment law and the principle of non-discrimination?

  • Disability discrimination

Disability is a protected characteristic for the purposes of the Equality Act 2010 (EqA) by virtue of section 6 which defines disability as a physical or mental impairment which “has a substantial and long-term adverse effect on [a person’s] ability to carry out normal 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 physical impairments caused by the virus are indeed substantial, since at present it appears that  the effects of the illness do not last at least 12 months or are likely to last at least 12 months (see EqA 2010, Sch 1, para 2).

But more importantly, in the context of a test which identified immunity, the most likely basis for less favourable treatment is not yet having had Covid-19.  In this scenario, there would be no impairment and so no disability angle.

But, there is an alternative analysis here which is that the individual might not have become immune either because they have a disability which means they have been self-isolating for a long period of time or they live with someone who is in this position.  In those circumstances, there may be an indirect disability angle arising from the individual’s disability or due to an association with a disabled person.  The extent to which the justification defence could then be satisfied would be highly fact specific and would depend to a large extent on the prevailing medical advice and the nature of the workplace.  Equally, there might be a requirement to make reasonable adjustments for someone 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 immune staff were back at work.  For similar reasons, there may be scope for a s.15 claim under the EqA.

  • Article 14 & public sector workers

The position is even more nuanced in the public sector.

Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

Public sector employers, who have to make decisions in accordance with the Human Rights Act 1998 could fall foul of Article 14 if “other status” was accepted as including not (yet) possessing a positive antibody test or being other than immune.

Article 14 is not a self-standing right that prohibits discrimination, since it only applies in so far 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 a likely source of rights. Firstly although there is no general right to employment or to the continuation of employment (Fernandez Martinez v Spain (56030/07) (2015) 60 EHRR 3), the notion of “private life” may include business related activities. Restrictions imposed on access to working in particular to specific professions have been found to affect “private life” (Sidabras v Lithuania (55480/2000) (2006) 42 EHRR 6, [2004] 7 WLUK 752, § 47). Antibody test results amount to a factor intrinsic to one’s private life, which may impact on existing or future employment. Secondly, the concept of a private life encompasses the right to form and develop relationships with others, including those of a professional or business nature (Volkov v. Ukraine no. 21722/11, ECHR 2013, §165). During a lockdown many are deprived of the opportunity of developing relationships with the outside world (see Niemietz v. Germany A/251-B (1993) 16 EHRR 97, §29), but when that opportunity is curtailed on discriminatory grounds, Article 14 combines with Article 8 to give rise to a potential challenge.

In Novruk v Russia Appl No. 31039/11 (2016) 63 EHRR 19 the European Court of Human Rights held that “other status” in Article 14 included health status related to HIV infection.  This would further suggest that not (yet) possessing a positive antibody test or being other than immune would 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 to fall within Article 14 despite his working capacity not being impacted by health issues (§86).  So Article 14 may encompass the status of lacking a positive antibody test despite having no symptoms (which would prove fatal to establishing disability under section 6 EqA).

It is uncontroversial that the list in Article 14 is not static. Although the concept of a “status” must entail a “personal” characteristic, there is no requirement that the characteristic should be innate, inherent or exist independently from the complaint: 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, finding that an occupational classification is clearly capable of being a “status” within the meaning of Article 14. If a classification relating to work falls into that bracket, why not a classification relating to the presence or absence of an antibody?

If a breach of these provisions was established, the question of justification would be determined on a case by case basis. Of key importance would be the scientific evidence and current data going to what the test results showed, statistics concerning the prognosis of contagion and the predicted status quo at the time the employment in question was due to commence.

It follows that it would be  short-sighted to assume that justification for preferential treatment based on a positive antibody test would always be made out.

  • Sex and age discrimination

Given the present suggestion that more men than women are falling prey to Covid-19, it may be that gender becomes a basis for challenging the use of testing to determine access to the workplace through the prism of an indirect claim. In such circumstances would a female applicant for a job who could either not access an antibody test due to a lack of symptoms or whose test result was negative, argue that the requirement to present a positive result had an adverse impact upon her (and that women could show a group disadvantage), since men had had the virus more often or perhaps were selected for testing more often? Again, the outcome of a justification exercise would depend on the scientific data available. Surely it would be difficult to maintain an argument that testing was offered to the group more likely to have had the virus in so far as this led to a gender imbalance when it came to returning to work?  

Older people have generally been self-isolating for longer than the under–70s.  This may mean they have had less access to the virus and will not have built up immunity at the same rate as the younger community. Would it be justifiable to reject a 70-year-old applicant for a job because she did not have this immunity following an antibody test owing to her rigorously following Government advice? It seems that blanket denial of access to testing, rather than using the test’s objective (such as securing healthy workers to interact with the public) as a criterion, is likely to be problematic.

  • Implied term of trust and confidence

Can an employer demand that its workforce undergo testing? Could it make decisions based purely on test results? The instinctive answer is yes, bearing in mind the current urgency to control the spread of the Sars-CoV2 virus. But the circumstances of each scenario will be determinative.

The contract of employment is unlikely to include a clause providing the contractual basis for an instruction to comply with testing. But whilst an employer may have no express contractual power to require an employee to be tested, in the exceptional circumstances of the current health crisis, the implied duty of trust and confidence would probably provide the employer with the right to issue an instruction that employees should be tested, unless the need is not apparent (such as a publishing house whose employees can work and meet remotely and 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 to comply with a reasonable instruction to be tested would breach their own duty of trust and confidence and their personal duty under the Health and Safety at Work Act 1974 to take care of their own health and safety as well as that of their colleagues and possible service users (such as patients in a hospital).

Do circumstances exist where an employee may resign and claim constructive dismissal if they consider their employer has not taken reasonable steps to ensure their safety, by failing to test them where testing facilities exist, or by making detrimental decisions relating to test results where there is no immediate concern about infection? It is easy to imagine situations where employers apply the same instructions to all the workforce without distinguishing between different roles.  However, in workplaces where employees need to interact with one another or the public it would be difficult to establish a repudiatory breach of the mutual term of implied trust and confidence owing to the severe need to stem the flow of contagion.

  • Unfair dismissal

If employees are dismissed for not being immune or declining to take a test, the complaints of unfair dismissal seem bound to fail in relation to workplaces where testing is necessary to enable a business to continue to operate safely or where a need exists for key workers to work without infecting others especially vulnerable service users. How can it be outside for the range of reasonable responses to require the workforce to be tested in such circumstances? The more difficult cases will arise in relation to 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 a long way to strengthening a defence to a complaint of unfair dismissal.

Is the position different in relation to future roles?

The analysis above looks at the present picture but suppose a school is recruiting for a teacher to commence work in the future, say next September.  Should a result to an antibody test be relevant to suitability for work many months ahead?

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. Whilst it may be possible in theory for anyone to purchase a Covid-19 home test from Boots or Amazon, because the initial order is only for 3.5 million tests, this is insufficient for the entire UK population. It might be naïve to assume that the targeting of tests at key workers will be without conflict. “immunity passports” are going to be a controversial issue. The fragile economy will put great pressure on the uneasy balance between supply and demand of these tests, making it all the more important that decisions about access to testing are made with care and on a lawful basis.

1 April 2020

Rachel Crasnow QC

Cloisters

Other blogs in this series are available here:

Covid-19: Critical workers refusing work – What if everyone is being reasonable?   Schona Jolly QC 26 March 2020
Covid-19: Pay for working parents forced to look after their children Rachel Crasnow QC 27 March 2020
Covid-19: Furlough and job retention: Key issues for Employment Lawyers   Daniel Dyal 30 March 2020
Covid-19:  Is Facial Recognition Technology in the workspace the answer to social distancing or discriminatory? Robin Allen QC and Dee Masters 31 March 2020