It was reported as far back as 10 days ago, which feels like a lifetime in ‘corona time’ that Cadbury’s were taking staff temperatures. A lot of businesses have followed suit. If you are contemplating it then these are a few of the legal issues.
Consent
To proceed without consent could potentially be a repudiatory breach of contract in respect of employees, entitling them to claim constructive dismissal. In relation to other individuals, this could constitute assault.
Consent may not be an issue in the majority of cases, where consequence of anyone having the virus is that the business would have to close.
Check contracts for any general testing rights that may enable the employer to consider disciplinary action for a refusal to be tested.
Data protection
Health information is a special category personal data. A permitted ground for processing special category data is for health purposes as long as the person processing the data works as an occupational health professional. So, strictly speaking, this permitted ground is only likely to apply if occupational health (subject to confidentiality obligations) undertake the testing.
Discrimination
If an employer carries out temperature testing, it should ensure that it is applied consistently to everyone. Only testing certain groups, for example Italian nationals, perceived to be at a higher risk of having contracted a virus, could potentially lead to discrimination claims.
