Q: Do we have a legal right to take employee's temperatures at work?

Please note, the Government's latest announcement (on 10 May) outlined that people should continue to stay at home as much as possible. The Government has stated that people who can work from home should continue to do so but people who can’t work from home (for instance those working in construction or manufacturing), are being 'actively encouraged to go to work'. However, people should avoid public transport if at all possible and it's crucial that employers remember that the physical, emotional and mental well-being of the workforce remains the key principle of managing any return to the workplace. Where the safety of employees cannot be guaranteed, employees should remain at home as much as possible. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. If it is not essential for work to happen in the workplace, then the default should remain for now to continue to work from home. The Government is due to release new guidance for employers to make workplaces COVID-secure and so employers should keep checking the government website for the latest information.

If your business is able to remain open the legal position concerning taking employees’ temperatures in connection with the coronavirus is similar to the medical testing of employees for other reasons. The easiest way for employers to take employees’ temperatures or conduct medical tests is to seek the employees’ consent. The contractual terms agreed in the employment contract or accompanying policies may be of assistance to employers who want to check employees’ temperatures at work.

Employee’s consent

Employers who wish to monitor employees’ temperatures should openly explain the current coronavirus advice, their concerns and risk management strategy. Employees may then consent to having their temperatures taken.

If employees do not consent and there is no contractual provision or agreed policy covering the situation then taking an employee’s temperature is unlawful. Certainly, an employer should not try to force employees into having their temperature taken, or issue threats of suspensions, disciplinary or dismissal processes. Informed consent is needed, and consent cannot be given under pressure or duress.

Contractual provisions

Express terms: Some employment contracts have clauses in them which impose an obligation on employees to undergo drugs testing, providing a sample, of urine, hair, saliva or blood etc. Depending on the wording of the clause, taking a temperature might be covered by these clauses.

If an employee refuses to comply with a pre-existing clause which encompasses taking temperatures, then the employee may be in breach of contract by refusing to co-operate. If there is a clear clause which covers taking temperatures then refusal might provide grounds for a disciplinary or dismissal procedure.

Implied terms: A possible course of action for employers who wish to insist on testing (without an express clause) would be reliance on a possible implied contractual term that employees should comply with a reasonable request from their employer. On the one hand, employers do have a duty to protect the safety of their workplace under the Health and Safety at Work Act which includes ensuring that employees are not infecting others with the coronavirus. On the other hand, from a practical point of view, an employee may be infected with coronavirus without yet having a raised temperature. So, temperature checks may not be the most justifiable or effective method for protecting the workforce. Different businesses such as public transport and healthcare also pose different safety risks where testing may be more justified.

Whether insisting on taking temperatures is reasonable (without an express clause) depends on a number of factors including the employee’s role, official health advice on precautionary measures at the time, the employee’s symptoms and the alternative causes of action, such as self-isolation, that are available. It is preferable for employers to suggest working from home or self-isolation rather than trying to force a reluctant employee into temperature or other testing.

Data protection

If employers do test temperatures, the recording of temperature testing data needs to be handled appropriately because the data (similarly to drug testing) is likely to be covered under data protection law.

Any data that an employer has about an employee’s temperature, symptoms, where the employee has been and whether he or she has tested positive for coronavirus is sensitive personal data and additional requirements apply to ensure the data is processed legally. It is preferable for employers to have a policy document covering the processing to ensure compliance with key data protection principles including transparency, data minimisation and security requirements.

Employers should be entitled to process such employee information on the basis of the employer’s health and safety duties. This is provided that it can be shown that temperature information is necessary to protect the health, safety and welfare of employees. Employers should consider and document the risk to employees and any alternatives to obtaining and processing the data that have been considered. The health and safety context, such as decisions relating to office closures or disinfecting the workplace will also be relevant to justify the processing. (See paragraph 1, Schedule 1 Part 1 of the UK Data Protection Act 2018 and Article 9(2)(b) GDPR).


Q: How should we support pregnant employees?

Please note, the Government's latest announcement (on 10 May) outlined that people should continue to stay at home as much as possible. The Government has stated that people who can work from home should continue to do so but people who can’t work from home (for instance those working in construction or manufacturing), are being 'actively encouraged to go to work'. However, people should avoid public transport if at all possible and it's crucial that employers remember that the physical, emotional and mental well-being of the workforce remains the key principle of managing any return to the workplace. Where the safety of employees cannot be guaranteed, employees should remain at home as much as possible. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. If it is not essential for work to happen in the workplace, then the default should remain for now to continue to work from home. The Government is due to release new guidance for employers to make workplaces COVID-secure and so employers should keep checking the government website for the latest information.

Risks at work

Pregnant women have extra statutory protection to ensure they are protected from risks at work. Employers have a duty to protect all employees and an even higher duty towards any staff who are pregnant. The latest government advice is that pregnant women be extra cautious and avoid non-essential contact as much as possible so you should offer working from home as much as possible.

Where it is not possible to offer home working, pregnant employees can be offered suitable alternative employment on a temporary basis (that could be done from home) or suspended from work on medical grounds (on full pay). If the pregnant employee remains suspended until the fourth week before the expected week of childbirth, this triggers the commencement of her maternity leave.

Pregnant employees

Employees who are pregnant during the crisis can start maternity leave as usual. If the workers planning to take paid parental or adoption leave are already furloughed they are entitled to pay based on their usual earnings not the furlough pay.

Leave and pay

For staff already on maternity, paternity or adoption leave or shared parental pay normal rules for statutory pay apply. For example, eligible mothers will be entitled to claim up to 39 weeks of statutory maternity pay or maternity allowance. The rate is 90% of average weekly earnings for the first six weeks, followed by 33 weeks of pay at 90% of average weekly earnings or the statutory flat rate (whichever is lower). The statutory flat rate rose to £151.20 a week from April this year.

Enhanced contractual maternity, paternity, adoption and shared parental pay are included within the wage costs that employers can claim back through the Coronavirus Job Retention Scheme.


Q: If we are asked to shut as a business, how can we manage this for our casual staff?

Please note, the Government's latest announcement (on 10 May) outlined that people should continue to stay at home as much as possible. The Government has stated that people who can work from home should continue to do so but people who can’t work from home (for instance those working in construction or manufacturing), are being 'actively encouraged to go to work'. However, people should avoid public transport if at all possible and it's crucial that employers remember that the physical, emotional and mental well-being of the workforce remains the key principle of managing any return to the workplace. Where the safety of employees cannot be guaranteed, employees should remain at home as much as possible. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. If it is not essential for work to happen in the workplace, then the default should remain for now to continue to work from home. The Government is due to release new guidance for employers to make workplaces COVID-secure and so employers should keep checking the government website for the latest information.

The term 'casual' covers a wide range of legal status; workers labelled as casual could potentially be employees, workers or self-employed. Their status may not have been called into question until considering their rights following the coronavirus outbreak. The government has introduced a range of support measures for businesses during this time, including the Coronavirus Self-Employment Support Coronavirus Job Retention Schemes. More information can be found in the FAQs on these schemes on the government website

The precise legal rights of casual workers will depend upon their status which is governed by how the arrangement operates in practice and upon the terms of the contractual documentation. Some staff deemed to be casual may in fact be protected as employees.

Statutory Self-Employment Scheme

If the casual staff are not employees on the PAYE system, then, as self-employed persons, they should be contacted by HMRC under the Coronavirus Scheme for the self-employed. The business that provided them with work will not be involved in the process, and the worker should obtain a payment provided that their average profits in the past three tax years were under £50,000. The individuals must be predominantly self-employed rather than employees i.e. their self-employed profits must be more than half of their average taxable income. See our FAQ on this scheme.

Coronavirus Job Retention Scheme

If the casual staff are employees on the PAYE system the employer may be able to include those staff in its claim for an 80% contribution towards their pay under the scheme.

Contractual issues

If casual staff have already been assigned to shifts, the legal position will depend upon the contractual arrangement. Some contracts state there is legally binding commitment once a shift is offered. If so then the organisation may be contractually bound to pay the worker. In other cases, previous custom and practice may mean that a worker is paid for a last-minute cancellation of a shift.

Breach of contract claims can arise if an organisation has agreed work and then attempts to renege on this. Ideally the contract will contain a clear policy on cancellation of work. If no shifts have yet been offered or accepted, then there may be no contractual obligation to pay the individual if there is a coronavirus related business closure or lock down.

Frustration

As well as basic contractual rights another legal concept that may come into play is that of frustration. Some contracts can be set aside where an unforeseen event makes it impossible for one or both parties to fulfil the contract. The concept doesn’t arise very often in an employment context. Examples where frustration has been successfully argued by the employer include situations where the employee dies, is sent to prison or is excluded from their place of work by a third party, or where the employee is ill. The law takes a pragmatic approach to how long the employer and employee cannot perform for, how long the contract was for, the terms of the contract and whether the events genuinely makes the contract impossible to perform.

In the context of coronavirus a three-week closure of a workplace would not frustrate a longer-term ongoing contact because the remainder of the contract can still be fulfilled. However, if a casual worker had a specific arrangement of short term work at the employer’s premises, for example for one month, and the workplace was then closed down during that same time period then the contract may be frustrated, absolving the employer from the obligation to pay.

Practical points

Casual workers who are self-employed should be able to claim 80% of their average income under the self-employed support scheme. If they cannot, for employers who can afford to do so, paying them something for a last-minute cancellation due to coronavirus closures may be a practical and ethical compromise. Some casual workers may have contractual protection and may threaten to make a claim so a goodwill payment of some expenses, an inconvenience payment, or a commitment to future work if a rota or shift is cancelled at short notice may resolve the situation. 

(Previous recommendations of the Low Pay Commission proposals in 2019 to compensate casual workers for last-minute cancellations of shifts have not been implemented as yet.)

DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.


If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages

We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.

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