Temperature checking employees – don’t get your fingers burnt in an employment tribunal

As lockdown eases, retailers are looking closely at sensible practical measures that they can implement to help minimise the risk of Covid-19 spreading within workplaces.

Many lessons have been learnt from the experiences of essential retailers who have either stayed open throughout the pandemic, or who have now reopened their doors – in particular around effective implementation of social distancing measures. One practice which has gained a degree of traction in some areas however is temperature checking of staff when they arrive for work.

Simply checking staff on arrival with an IR thermometer may seem like a straightforward measure to implement, however it requires more consideration and planning than one might think if problems are to be avoided.

As a form of ‘medical examination’, the employee’s consent to such testing will be required – although one would hope that in the majority of cases this wouldn’t pose an issue. Indeed, staff will likely find it reassuring that the employer is taking steps to protect their health in the workplace. This is nonetheless a process to obtain health information about an individual, which qualifies as ‘special category’ personal data.

Retailers introducing temperature checks in the workplaces therefore need to comply with data protection obligations. It would be appropriate to carry out a data protection impact assessment and consult the ICO workplace testing guidance prior to implementation.

As part of that impact assessment, naturally the employer should consider what the data will be used for, who it will be shared with, and how long it will be kept for. However, one of the biggest considerations perhaps is what decisions will be made based on the test results, as this gives rise to some serious potential impacts – not least discrimination claims.

We all now know of course that one of the symptoms of Covid-19 is a high temperature (37.8C or higher). Naturally though, Covid-19 is not the only thing that could cause such a high reading. This could be caused by any number of other conditions, not least sunburn, hormone disorders such as hyperthyroidism, certain cancers or medications, or even a hot flush linked to menopause.

If the plan is to simply turn an employee away (especially one receiving statutory sick pay only) in response to a simple high temperature reading, this naturally gives rise to potential exposure to claims not only for constructive unfair dismissal, but also for disability and/or sex discrimination.

Whilst temperature checking may be a worthwhile measure therefore, employers need to be conscious of the fact that it is a blunt tool which has the scope to give rise to significant problems if used without appropriate care and planning.

Think carefully therefore about precisely what will happen in the case of a high reading. For example, will the employee be taken to a more private area to discuss their reading in more detail and explore whether there might be other reasons for the high result or whether they have any other symptoms? Will the test then be redone once a little bit of time has passed? If you’re going to send them away, then what pay will they be entitled to and for how long, and what follow-up are you going to do with them?

Appropriate consideration of all of these points (as well as some degree of initial engagement with staff prior to implementation) should help to lower the risks of problems emerging and potential claims down the line.

James Collings, partner, Foot Anstey’s employment law team