Unleashing the gene genie

One of the most controversial topics in employment law is the potential use
of genetic testing to screen out prospective employees with a genetic
predisposition to certain conditions. Clare Murray looks at the issues
employers should consider

Imagine being able to do a simple blood test or mouth swab to identify those
employees who are likely to take long periods of sickness absence; those who
may be a potential danger to themselves and to others; and those who may have a
genetic sensitivity to specific features of the workplace such as the use of
certain chemicals.

If this seems too Star Trek to be feasible in the near future, think again.
The Ministry of Defence has confirmed it has recently used genetic testing for
prospective air crew: they are screened for sickle cell disease as a crisis can
be provoked by low oxygen pressure in flights.

Further, a recent test case in the Hong Kong courts has brought the issue of
using genetic data in recruitment into the public domain. The Hong Kong
government was deemed to have acted unlawfully by screening out and dismissing
candidates they learned had a genetic predisposition to schizophrenia (see box
on page 12).

The spectre of genetic testing in employment results particularly from
insurance industry interest in this area. In essence it will allow insurers to
ensure the risk (and cost) of insured people contracting major diseases is
borne between the group of people who share a common susceptibility to them.

There is currently before Parliament draft legislation to prohibit the use
of genetic testing for any reasons other than clinical and medical purposes.
The Genetic Testing (Consent and Confidentiality) Bill, which had its first
reading in the Commons on 23 May 2000, aims to prohibit the use of genetic
tests, or disclosure of test results, in employment. But it remains unclear how
far this bill is likely to get and whether it will ever become law.

The Recruitment Society has taken a special interest in the area of genetic
testing in employment, and has even put together a draft code of practice
identifying key principles which should be adhered to if genetic testing in
employment is not expressly prohibited by legislation in the UK.

In June 1999, the Human Genetics Advisory Commission (now the Human Genetics
Commission), a non-statutory advisory body established by the Government,
issued a report assessing the value of genetic testing in the workplace and
raising awareness of the implications. It concluded that genetic tests in
employment should not be banned, but restricted to specific circumstances. The
key conclusions were:

– As a general principle an employee should have the right not to know his
genetic constitution.

– It would be unacceptable for genetic tests to be used to screen out or
dismiss individuals who may potentially have a shorter working life or a higher
likelihood of taking sick leave.

– However, testing (and previous test results) could be used to ensure that
an employee will not be a danger to himself or others and also to identify any
susceptibility to a particular feature of the workplace.

– An employer should be able to refuse to employ a person who refuses to
take a genetic test where issues of public safety arise.

– Genetic tests should be subject to assured levels of accuracy and
reliability.

Internationally, various governments have legislated to prohibit or restrict
the use of genetic testing – it is illegal in Austria, France and Norway. While
there is no legislation in force in the UK which deals directly with the issue,
there are various areas of law employers should take into consideration.

Human Rights Act

The Human Rights Act 1998 may prevent abuse of genetic testing. The European
Convention on Human Rights has already been used successfully where an
individual was tested for Aids by a prospective employer against his wishes.
This was found to be an infringement of his right to respect for private and
family life.

There are however some potential limitations to the protection offered by
the HRA. First, it only applies directly to public sector employers. Second,
the right to privacy can be overridden in certain circumstances, such as where
it is necessary in the interests of public safety, for the prevention of
disorder or crime, for the protection of health, or of the rights and freedoms
of others.

However, even where the reason for overriding the individual’s right to
privacy falls within one of these grounds, it must still be in accordance with
law and be proportionate – that is, reasonable and justifiable in the
circumstances.

Discrimination law

The Sex Discrimination Act 1975 and Race Relations Act 1976 may offer
limited protection where the individual’s illness is gender or race specific.
For example, refusal to employ someone who has a predisposition to heart
disease may constitute indirect sex discrimination, as more men than women have
a genetic tendency towards heart disease. The potential employer would have a
defence only if it could show the requirement could be objectively justified.

With regard to indirect race discrimination, medical evidence indicates that
there may be 20 times the incidence of stomach cancer among the Japanese as
among white Europeans. Sickle cell disorder is a condition particularly
prevalent among Afro-Caribbeans. Individuals with these types of genetic
predispositions who are required to undergo genetic tests in employment will
therefore have an additional measure of legal protection.

The Disability Discrimination Act 1995 provides no protection for an
individual who is identified through genetic testing only as being likely (or
certain) to suffer from a recognised condition in the future, as it applies
only where people have (or have had) a physical or mental impairment with a
substantial and long-term adverse effect on their abilities to carry out normal
day-to-day activities.

Data protection

Data protection legislation assists individuals who provide the results of
genetic tests to employers or potential employers. Genetic test results should
fall within section 2(e) of the Data Protection Act 1998, as "sensitive
personal data", being "personal data consisting of information
relating to the individual’s "physical or mental health or
condition". Under the DPA 1998, a data controller will not be taken as
having complied with the first data principle (that personal data must be
processed fairly and lawfully) in respect of sensitive personal data unless
special conditions have been met. The special conditions include the giving of
express consent by the individual and various necessity-based circumstances.

In addition, the Secretary of State has the power to categorise certain
kinds of processing as "assessable processing" where that processing
appears particularly likely to cause substantial damage or distress to data
subjects, or otherwise significantly prejudices their freedoms.

The Secretary of State is apparently considering whether to include the
processing of genetic data in the list of assessable processing. The
consequence of this would be that controllers of all new genetic data would
have to notify the Data Protection Commissioner of their intention to process
it.

If the data controller carries out assessable processing before receiving
confirmation from the Data Protection Commissioner that the processing is
likely to comply with the Act, he will be guilty of an offence.

Health and safety liability

Employers who appoint an individual who has undertaken a range of genetic
tests may find that their health and safety obligations inadvertently increase.
An employer is under a duty of care regarding the health and safety of each of
its employees. If it knows that an employee has a particular susceptibility, it
may not be deemed to have discharged that duty simply by offering that employee
the same safety precautions it does to others. In the case of Paris v Stepney
Borough Council, 1951, AC 367, a work environment posed some risk of eye
injury, but not enough to require the employer to provide protective eyewear to
employees.

One employee, however, had only one eye, and was totally blinded when
working under a company vehicle by a piece of metal falling into his good eye.
The court held while it was not normal practice to provide goggles to normally
sighted workers, the council owed a higher duty of care to the employee it knew
to have only one eye and was liable for damages for breach of that duty.

Negligence

An employer or potential employer may also be exposed to a potential
negligence action if it requires the individual to undergo genetic testing for
major diseases without providing appropriate counselling and support for the
individual to help him deal with any unfavourable test results. Diagnosis of
some genetic disorders is likely to be accompanied by depression and in extreme
cases, suicide. It is therefore arguable there is a high likelihood of harm to
the individual who is required to undergo genetic testing by the prospective
employer, receives an unfavourable test result in relation to a major disorder,
and is not provided with any counselling or support.

The failure of the potential employer to provide a system to support and
counsel an individual who, for example, suffers clinical depression and is
consequently unable to work, could form the basis of a negligence action
against the company. n

Genetics and employment – an international test case

One of the first attempts to use genetic data to ban individuals from jobs
was ruled unlawful by a judge in Hong Kong in October. It was hailed as a
crucial precedent for the rest of the world.

Three men were refused employment by the Hong Kong Government because they
had a genetic predisposition to schizophrenia: each had a parent who suffered
from it. They had applied for posts as a fireman, ambulance officer and customs
officer and all passed the tests for those jobs. However, two were rejected and
the third was abruptly dismissed, without reason. It was subsequently
discovered that the action was taken because of their genetic predisposition to
schizophrenia.

The Hong Kong Government considered this greatly increased their chances of
succumbing to the disease and they would be a potential danger to themselves
and others.  

It emerged in the court proceedings that the Government had misunderstood
the statistical chances of the individuals contracting schizophrenia. They
considered each man had a 10 per cent chance of contracting schizophrenia
compared to the risk for an average person of about 1 per cent. In fact, as the
men were past teenagehood (when schizophrenia usually begins), their risk was
much lower – about 4 per cent. The individuals also brought medical evidence to
show schizophrenia does not occur abruptly "with quite innocent people
suddenly going berserk". It is a slow- developing condition which can be
spotted well in advance so the individuals would still not have posed a danger.
 

The Hong Kong court ruled the screening out of these individuals was unlawful,
stating that the men’s genetic liability "did not present a real risk to
safety". The men were awarded a total of £250,000 in damages.

Clare Murray is an employment law partner at Fox Williams and a member of
the Recruitment Society’s Genetic Testing Sub-committee

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