Mandatory PCR testing
Your employer should have consulted with either you, your representative or (if applicable) your union before bringing in a mandatory testing policy
If, however, a policy has been implemented, your options will turn on whether your employer’s instruction is reasonable and lawful in the eyes of the law. As discussed below, if your employer’s instruction is reasonable, non-compliance potentially could result in your employer commencing disciplinary proceedings against you.
Is the instruction reasonable?
The starting point in assessing reasonability is to check whether there is a specific clause within your employment contract that grants your employer the right to require you take COVID tests. The existence of such a clause would likely mean that the testing policy is reasonable
The nature of your role, in particular whether it involves being in close physical proximity with others, will also affect whether such an instruction is reasonable
If your job necessarily involves contact with others, and therefore the risk of the transmission of COVID, it is more likely that an instruction to test frequently will be a reasonable one. If, however, adequate social distancing could reduce the risk of infection sufficiently, the instruction is less likely to be reasonable.
Another important consideration is whether your employer has brought in the policy of its own accord or as a result of an external demand from a client or another third party. A common example of this is where the managing entities of construction sites require everyone on site, including contractors and their employees, to carry out routine PCR tests.
If your employer has brought a testing policy to meet client or other external demands, their actions are more likely to be considered reasonable.
Communicating your concerns
Notwithstanding the above, if you find that your autism makes testing especially stressful or difficult, you should communicate your concerns to your employer
Your employer has a duty to make reasonable adjustments to accommodate your situation
These adjustments could include assigning you a role that does not involve you being in close proximity to others. The ACAS website has more information on reasonable adjustments. Compelling you to take a test despite you communicating these concerns could constitute unlawful discrimination. You should seek advice if this takes place.
If your concerns relate to the personal data your employer could potentially hold as a result of the testing process you should seek written assurances from them that they are aware of, and will comply with, their data protection obligations under the General Data Protection Regulation (GDPR). You could also ask your employer to supply you with lateral flow tests which do not involve any third party administration or collection of data.
If instead you are concerned about the impact of potential self-isolation following a positive result, you could ask your employer to commit to continue paying you during any period of compelled isolation and to not allow this period to erode any of your annual leave allowance.
Furlough
You could also request that your employer furlough you on the basis that there is not enough work available to you that does not require you to participate in frequent testing. You should be aware, however, that even if your employer agrees to this, the furlough scheme is due to come to an end on 30 September 2021.
Non-compliance
If your employer’s policy is reasonable (as discussed above) and furlough is not an option, you should be aware that non-compliance could constitute a breach of an implied or express term of your employment contract.
Whilst ACAS currently discourages employers from commencing disciplinary proceedings for such non-compliance, your employer may still choose to do so. Provided your employer follows proper disciplinary procedure this could eventually result in dismissal.
