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first_imgUnleashing the gene genieOn 1 Dec 2000 in Personnel Today Previous Article Next Article One of the most controversial topics in employment law is the potential useof genetic testing to screen out prospective employees with a geneticpredisposition to certain conditions. Clare Murray looks at the issuesemployers should considerImagine being able to do a simple blood test or mouth swab to identify thoseemployees who are likely to take long periods of sickness absence; those whomay be a potential danger to themselves and to others; and those who may have agenetic sensitivity to specific features of the workplace such as the use ofcertain 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 forprospective air crew: they are screened for sickle cell disease as a crisis canbe provoked by low oxygen pressure in flights. Further, a recent test case in the Hong Kong courts has brought the issue ofusing genetic data in recruitment into the public domain. The Hong Konggovernment was deemed to have acted unlawfully by screening out and dismissingcandidates they learned had a genetic predisposition to schizophrenia (see boxon page 12). The spectre of genetic testing in employment results particularly frominsurance industry interest in this area. In essence it will allow insurers toensure the risk (and cost) of insured people contracting major diseases isborne between the group of people who share a common susceptibility to them. There is currently before Parliament draft legislation to prohibit the useof genetic testing for any reasons other than clinical and medical purposes.The Genetic Testing (Consent and Confidentiality) Bill, which had its firstreading in the Commons on 23 May 2000, aims to prohibit the use of genetictests, or disclosure of test results, in employment. But it remains unclear howfar 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 genetictesting in employment, and has even put together a draft code of practiceidentifying key principles which should be adhered to if genetic testing inemployment is not expressly prohibited by legislation in the UK. In June 1999, the Human Genetics Advisory Commission (now the Human GeneticsCommission), a non-statutory advisory body established by the Government,issued a report assessing the value of genetic testing in the workplace andraising awareness of the implications. It concluded that genetic tests inemployment should not be banned, but restricted to specific circumstances. Thekey conclusions were: – As a general principle an employee should have the right not to know hisgenetic constitution. – It would be unacceptable for genetic tests to be used to screen out ordismiss individuals who may potentially have a shorter working life or a higherlikelihood of taking sick leave. – However, testing (and previous test results) could be used to ensure thatan employee will not be a danger to himself or others and also to identify anysusceptibility to a particular feature of the workplace. – An employer should be able to refuse to employ a person who refuses totake a genetic test where issues of public safety arise. – Genetic tests should be subject to assured levels of accuracy andreliability. Internationally, various governments have legislated to prohibit or restrictthe use of genetic testing – it is illegal in Austria, France and Norway. Whilethere 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 EuropeanConvention on Human Rights has already been used successfully where anindividual 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 andfamily life. There are however some potential limitations to the protection offered bythe HRA. First, it only applies directly to public sector employers. Second,the right to privacy can be overridden in certain circumstances, such as whereit is necessary in the interests of public safety, for the prevention ofdisorder or crime, for the protection of health, or of the rights and freedomsof others. However, even where the reason for overriding the individual’s right toprivacy falls within one of these grounds, it must still be in accordance withlaw and be proportionate – that is, reasonable and justifiable in thecircumstances. Discrimination law The Sex Discrimination Act 1975 and Race Relations Act 1976 may offerlimited protection where the individual’s illness is gender or race specific.For example, refusal to employ someone who has a predisposition to heartdisease may constitute indirect sex discrimination, as more men than women havea genetic tendency towards heart disease. The potential employer would have adefence only if it could show the requirement could be objectively justified. With regard to indirect race discrimination, medical evidence indicates thatthere may be 20 times the incidence of stomach cancer among the Japanese asamong white Europeans. Sickle cell disorder is a condition particularlyprevalent among Afro-Caribbeans. Individuals with these types of geneticpredispositions who are required to undergo genetic tests in employment willtherefore have an additional measure of legal protection. The Disability Discrimination Act 1995 provides no protection for anindividual who is identified through genetic testing only as being likely (orcertain) to suffer from a recognised condition in the future, as it appliesonly where people have (or have had) a physical or mental impairment with asubstantial and long-term adverse effect on their abilities to carry out normalday-to-day activities. Data protection Data protection legislation assists individuals who provide the results ofgenetic tests to employers or potential employers. Genetic test results shouldfall within section 2(e) of the Data Protection Act 1998, as “sensitivepersonal data”, being “personal data consisting of informationrelating to the individual’s “physical or mental health orcondition”. Under the DPA 1998, a data controller will not be taken ashaving complied with the first data principle (that personal data must beprocessed fairly and lawfully) in respect of sensitive personal data unlessspecial conditions have been met. The special conditions include the giving ofexpress consent by the individual and various necessity-based circumstances. In addition, the Secretary of State has the power to categorise certainkinds of processing as “assessable processing” where that processingappears particularly likely to cause substantial damage or distress to datasubjects, or otherwise significantly prejudices their freedoms. The Secretary of State is apparently considering whether to include theprocessing of genetic data in the list of assessable processing. Theconsequence of this would be that controllers of all new genetic data wouldhave to notify the Data Protection Commissioner of their intention to processit. If the data controller carries out assessable processing before receivingconfirmation from the Data Protection Commissioner that the processing islikely 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 genetictests 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 ofits employees. If it knows that an employee has a particular susceptibility, itmay not be deemed to have discharged that duty simply by offering that employeethe same safety precautions it does to others. In the case of Paris v StepneyBorough Council, 1951, AC 367, a work environment posed some risk of eyeinjury, but not enough to require the employer to provide protective eyewear toemployees. One employee, however, had only one eye, and was totally blinded whenworking 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 normallysighted workers, the council owed a higher duty of care to the employee it knewto 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 potentialnegligence action if it requires the individual to undergo genetic testing formajor diseases without providing appropriate counselling and support for theindividual to help him deal with any unfavourable test results. Diagnosis ofsome genetic disorders is likely to be accompanied by depression and in extremecases, suicide. It is therefore arguable there is a high likelihood of harm tothe individual who is required to undergo genetic testing by the prospectiveemployer, 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 andcounsel an individual who, for example, suffers clinical depression and isconsequently unable to work, could form the basis of a negligence actionagainst the company. n Genetics and employment – an international test caseOne of the first attempts to use genetic data to ban individuals from jobswas ruled unlawful by a judge in Hong Kong in October. It was hailed as acrucial precedent for the rest of the world.Three men were refused employment by the Hong Kong Government because theyhad a genetic predisposition to schizophrenia: each had a parent who sufferedfrom it. They had applied for posts as a fireman, ambulance officer and customsofficer and all passed the tests for those jobs. However, two were rejected andthe third was abruptly dismissed, without reason. It was subsequentlydiscovered that the action was taken because of their genetic predisposition toschizophrenia. The Hong Kong Government considered this greatly increased their chances ofsuccumbing to the disease and they would be a potential danger to themselvesand others.  It emerged in the court proceedings that the Government had misunderstoodthe statistical chances of the individuals contracting schizophrenia. Theyconsidered each man had a 10 per cent chance of contracting schizophreniacompared to the risk for an average person of about 1 per cent. In fact, as themen were past teenagehood (when schizophrenia usually begins), their risk wasmuch lower – about 4 per cent. The individuals also brought medical evidence toshow schizophrenia does not occur abruptly “with quite innocent peoplesuddenly going berserk”. It is a slow- developing condition which can bespotted 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 tosafety”. The men were awarded a total of £250,000 in damages. Clare Murray is an employment law partner at Fox Williams and a member ofthe Recruitment Society’s Genetic Testing Sub-committee center_img Comments are closed. Related posts:No related photos.last_img read more