Guidance by the Information Commissioner’s Office on workplace testing during the coronavirus pandemic
26 MAY 2020
Any testing you carry out to check whether your staff have symptoms of Covid-19 or Covid-19 involves processing staff’s personal data and so the guidance makes it clear that you would need to comply with the GDPR and the Data Protection Act 2018.
Your lawful basis for testing employees
The ICO suggests that “legitimate interests” is likely to be the most relevant lawful ground for processing for private employers, i.e. it’s in your legitimate interests to provide a safe workplace to protect your staff. You also have a statutory duty to protect your workers.
The health data constitutes special category personal data, so you also need to identify a relevant condition for processing. The Information Commissioner’s Office suggests that the relevant condition will be that the processing is necessary for the purposes of carrying out your obligations under the employment law, i.e. your health and safety legal obligations
You will need to demonstrate compliance and conduct a data protection impact assessment on the proposed testing process prior to any implementation. It is wise to keep records to demonstrate your compliance with the GDPR data protection principles, including processing the data lawfully, fairly and transparently and ensuring that the data is accurate, adequate to fulfil your stated purpose, relevant to that purpose and limited to what’s necessary for that purpose.
When sharing the fact that someone has tested positive with other staff, you should avoid naming individuals if possible and not provide more information than is strictly necessary.
On-site Temperature Checks
In some instances the employer might wish to use on-site temperature checks (such as non-contact digital thermometers to take readings on entry and exit) or thermal cameras for testing and monitoring staff. The Information Commissioner’s Office guidance stresses the need for transparency and for any monitoring to be both proportionate and necessary, i.e. it’s important to consider whether there are other less intrusive means that could be used to achieve the same results.
You cannot force an employee to have a coronavirus mouth or nose swab test against their will. However, you should be able to implement a policy that workers should not be allowed to attend their workplace, unless they have carried out the test because you have a duty to protect your staff and workplace.
It is advisable to follow government guidance on re-opening of the work places. The Information Commissioner’s Office guidance can be found here https://ico.org.uk/global/data-protection-and-coronavirus-information-hub/
We also recommend that you review your policies and procedures. Please see our other articles on this subject.
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Yulia BarnesManaging Partner
Yulia Barnes is our Managing Partner. She is an experienced solicitor and advises on a wide range of contentious and non-contentious matters for both private and corporate clients.Yulia started her legal career at a large international Magic Circle firm. She then became a partner at a regional law firm and headed a Dispute Resolution Department. She then moved in-house before starting her own Boutique practice, Barnes Law, with the aim of providing exclusive services to high net-worth individuals and privately-owned businesses. More details can be found on her LinkedIn profile.
Expertise Yulia and her team are widely recognised for their professional and practical approach to matters. She is committed to ensuring that her clients’ objectives are achieved in the most cost-effective way possible.
Approach Yulia has a wealth of experience working with businesses of all sizes: from large multinational corporations to start-ups. She has particular expertise in a hospitality industry, investment funds, private and corporate clients, and focuses on startups and technology-driven companies. Yulia brings the same level of attention to detail, professionalism and a personal touch to every case and client, and truly immerses herself in her clients’ businesses. She prides herself on her problem-solving, commercially astute approach and her track record of partnering with clients to help them achieve their strategic objectives.
Will joined Barnes Law as an Associate Solicitor in Spring 2023, shortly after qualifying in September 2022.
Will works mostly on real estate and corporate/commercial matters. Will enjoys providing advice on transactional matters.
Away from the office, Will can be found reading or playing golf. While he played rugby until university, and rowed throughout his degree, he now tends to watch both from the sidelines. During the winter he can also be found skiing.
Will plans to continue developing his legal skills and experience at Barnes Law, under the expertise and guidance provided by Yulia.
Mark is an experienced solicitor whose practice areas include intellectual property (IP), IT, data protection and general commercial law.
Mark advises businesses of all sizes – from sole traders to corporations. Among his clients are: clothing and lifestyle brands, restaurants and food suppliers, IT companies, banks, hedge funds and venture capital firms, education providers, medical and pharmaceutical brands.
Outside of his practice, Mark also advises members of the Institute of Directors as part of its Directors’ Advisory Service.
- Prosecuting a UK trademark application on behalf of an education provider and representing them in related UK IPO opposition and revocation proceedings;
- Advising a publisher and a delivery business on data protection matters, B2B and B2C Ts & Cs of sale, website and app Ts & Cs, all aspects of global brand protection;
- Advising footwear brands, alternative asset managers and hedge funds on their global brand protection, including overcoming various refusals, representing them in opposition proceedings and settlement negotiations;
- Representing a central bank in opposition proceedings before the UK IPO;
- Advising a lifestyle brand concerning trademark clearance and protection, negotiations for a website/app development and maintenance agreement.
Ioulia TatawatFamily Law Adviser
Ioulia has a solid background in family law and offers guidance, clarity, and support to clients during one of their most challenging times in their life.
She advises on all three pillars of separation: divorce, children matters and financial settlements. Ioulia is a member of Resolution and is keen to try to settle matters at early stages.
Ioulia is dedicated to assisting clients and navigating them through their legal matters with clarity and support.
Alex joined Barnes Law in September 2023 after finishing his master’s degree in law. Prior to joining Barnes Law, Alex worked in property litigation at Ashfords. Alex assists Yulia on a variety of both contentious and non-contentious matters.
Outside of the office, Alex enjoys reading and hiking. Prior to working in law, Alex was a competitive tennis player.
Alex continues to develop his skills in legal practice under Yulia’s guidance, he plans to sit the Solicitor’s Qualifying Exams (SQE) in 2024.
Mehves joined Barnes Law in August 2023, right after graduating from Queen Mary, University of London (LLB Senior Status). As part of her qualification journey, Mehves is currently pursuing her Legal Practice Course (‘LPC’) at the University of Law. She also holds a degree in European Union Law from Maastricht University, Netherlands.
Mehves works closely with Yulia on a variety of contentions matters and also writes Barnes Law’s legal blogs, manages social media accounts and is responsible for marketing.
Outside of work and studies, she enjoys running, tennis and yoga.
Mehves is looking forward to developing her legal skills at Barnes Law.
Julia PodgornovaInvestor Relationship Manager
Julia guides clients in making important business decisions based on comprehensive risk assessment and strategy. She supports investors in devising strategies designed to maximise each business’s potential from pre-seed to IPO.
Julia’s particular area of expertise are IT start-ups at different stages. Julia supports business through their fund-raising journey. As an Investor Relations Manager, Julia communicates with investors to facilitate a smooth round and legal part of each transaction.
In her free time Julia enjoys sailing, ballroom dancing, art exhibitions and travel.