Genetic testing and employee protection

Medical Law International

Volumn 4, Issue 1, 1999, Pages 39-57

  Gannon, Philippa ^a   Villiers, Charlotte ^a  

^a UNIVERSITY OF GLASGOW   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

DNA DETERMINATION; EMPLOYEE; EMPLOYMENT; HUMAN; LAW; LEGAL ASPECT; PRIVACY; REVIEW; UNITED KINGDOM;

EID: 0032700865     PISSN: 09685332     EISSN: None     Source Type: Journal    
DOI: 10.1177/096853329900400103     Document Type: Review

References (62)

1. For a discussion of the implications of genetic testing see, The Advisory Committee on Genetic Testing, Code of Practice and Guidance On Human Genetic Testing Services Supplied Direct To The Public, (1997, Department of Health, London).
2. The Trades Union Congress suggests that there is only anecdotal evidence of such practices and that there is no conclusive evidence of testing being conducted in unionised organisations: Note of a telephone conversation between the authors and the Trades Union Congress, February 1998. The Health and Safety Executive suggests that evidence is small and that only HM Forces have adopted genetic testing as a definite programme to screen for the sickle cell gene among aviators: Health and Safety Commission, Occupational Health Advisory Committee, Report of the Working Group on Genetic Screening and Monitoring, 1996, at p. 7.
3. See Rowe, Russell-Einhorn and Weinstein, "New Issues in Testing, the Workforce: Genetic Diseases" (1987), August, Labor Law Journal, 518-523, at 519.
4. See Ann Lusas Diamond, "Genetic Testing in Employment Situations" (1983) The Journal of Legal Medicine 231, at pp. 234-240.
5. The establishment of a Working Group on Genetic Testing and Employment by the Human Genetics Advisory Commission in July 1998 lends support to this prediction.
6. For example consider the genetic condition alpha-1-antitrypsin. Approximately one person in every 3000 has the gene for this condition. Those with the condition will develop lung disease later in life, exposure to pollutants will increase the onset of the condition.
7. Diamond, above note 3, at p. 244.
8. The qualifying period of employment in order to claim unfair dismissal remains at two years: s. 108 Employment Rights Act 1996. This position seems not to have changed following the decision of the House of Lords in R v Secretary of State for Employment ex parte Seymour-Smith and Perez [1997] IRLR 315.
9. Ss. 98(2)(a) and 98(3)(a).
10. Lynock v Cereal Packaging Ltd [1988] IRLR 510.
11. Deakin and Morris at p. 489.
12. Appleyard v FM Smith (Hull) Ltd [1972] IRLR 19.
13. Employment Rights Act 1996 s. 98(2)(d).
14. Employment Rights Act s, 98(1)(b).
15. See John Bowers and Andrew Clarke, "Unfair Dismissal and Management Prerogative: a Study of 'Some other substantial reason' " (1981) 10 ILJ 34.
16. Collins, above note 28, at pp. 37-40.
17. This test is set out in s. 98(4) of the Employment Rights Act 1996: The determination of whether a dismissal is fair or unfair - (a) depends on whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.
18. Deakin and Morris, above note 21, at p. 427. Wedderburn also makes the point that this approach tends to lower standards and therefore reduces levels of protection: see Lord Wedderburn, The Worker and the Law, (1986, Penguin, Harmondsworth).
19. The common law implied duty of cooperation has been illustrated by the case of Cresswell v Board of Inland Revenue [1984] IRLR 190. However, the employer now has a clearly established duty of respect for the employee in the instructions he or she imposes: see United Bank Ltd v Akhtar [1989] IRLR 507.
20. SI 1994, No. 2865.
21. John Sanchez, "Genetic Testing: The Genesis Of A New Era in Employee Protection", Western State University Law Review, 11, 165, 119-220, at p. 200. See also Office of Technology Assessment, "Role of Genetic Testing in the Prevention of Occupational Disease" (1983).
22. John Sanchez, "Genetic Testing: The Genesis Of A New Era in Employee Protection", Western State University Law Review, 11, 165, 119-220, at p. 200. See also Office of Technology Assessment, "Role of Genetic Testing in the Prevention of Occupational Disease" (1983).
23. Mary Basset-Stanford, "Genetic Testing in Employment", Suffolk University Law Review, Vol xv, 1187-1217 at p. 1192. The ILO refers to comparable figures thus leading us to suggest that in the UK the incidence of these genetic conditions will be similar: See, International Labour Office, "Conditions of Work Digest - Workers' Privacy - Part III: Testing in the Workplace" (1993).
24. Mary Basset-Stanford, "Genetic Testing in Employment", Suffolk University Law Review, Vol xv, 1187-1217 at p. 1192. The ILO refers to comparable figures thus leading us to suggest that in the UK the incidence of these genetic conditions will be similar: See, International Labour Office, "Conditions of Work Digest - Workers' Privacy - Part III: Testing in the Workplace" (1993).
25. Race Relations Act 1976, s. 1; Sex Discrimination Act 1975, s. 1.
26. Race Relations Act 1976, s. 4; Sex Discrimination Act 1975, s. 6.
27. [1982] IRLR 418 at 421, per Everleigh L.J.
28. As acknowledged in King v Great Britain-China Centre [1991] IRLR 513.
29. [1981] IRLR 13.
30. Richard Townshend-Smith, (1981) 11 ILJ, 132 at pp. 133-4.
31. See also Health and Safety Commission, Occupational Health Advisory Committee, Report of the Working Group on Genetic Screening and Monitoring, (1996) at para 12.
32. House of Commons Science and Technology Committee, Session 1994-5, 'Human Genetics: The Science And Its Consequences', Vol 1, at para 221.
33. For a discussion of the Disability Discrimination Act see Sue Maynard Campbell, "Disability Rights" in Aileen McColgan, (Ed) The Future of Labour Law, (Pinter, London, 1996) 221.
34. [1985] IRLR 308.
35. Ibid, at p. 315.
36. [1992] 1 QB 333.
37. Ibid, at pp. 350-351.
38. Ibid, at p. 346.
39. The Human Rights Act has arguably created a basis for the development of such a right. Alternatively, as a common law jurisdiction we might witness the courts developing such a right to be protected by the common law. See this argument expressed by the Lord Chancellor in House of Lords Debates, 24 November 1997, Col 783-787.
40. Section 7.
41. Section 2(e).
42. Schedule 3(1).
43. Schedule 3(2).
44. Schedule 3(5).
45. Section 7.
46. The Act addresses this by involving the data subject in the control, access and use of any data. For example, section 7(a)-(d) grants the right to be informed of processing, to be given a description of data, to be informed of to whom the information is to be disclosed, the source of the data and the logic involved in any decisions made using the data. In addition, Schedules 1, 2 and 3 stipulate principles which underpin the interpretation of the Act. These principles aim to protect the individual from abuse of unauthorised use of his or her personal or sensitive data.
47. House of Commons Science and Technology Committee, Session 1994-95, Human Genetics: The Science And Its Consequences, Volume 1.
48. Science and Technology Committee above note 90, at para 226.
49. The phrase "informed consent" is subject to debate in relation to its interpretation. In the UK it is more usual to refer to "consent".
50. For a comprehensive account of informed consent see Faden and Beauchamp, A History and Theory of Informed Consent, (1986 Oxford University Press, Oxford).
51. [1997] 8 Med LR 91.
52. Allin v City & Hackney Health Authority [1996] 7 Med LR 167. For a discussion of this case and the case in the above note see Nicholas J Mullaney, "Liability for Careless Communication of Traumatic Information" [1998] 114 LQR 380.
53. Nuffield Council on Bioethics, "Genetic Screening Ethical Issues" December (1993), p. 90. para 10.13; Science and Technology Committee see above note 90 at para 233.
54. Ibid.
55. Ibid.
56. Telephone Conversation February 1998.
57. See T. McGleenan. 'Genetic Testing and Screening: The Developing European Jurisprudence', (1999), Human Reproduction and Genetic Ethics, Vol. 5, No 1, 11-19.
58. Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the application of Biology and Medicine: Convention on Human Rights and Biomedicine 164, European Treaty Series, Oviedo, (1997).
59. For the impact of the Convention upon the UK see T. McGleenan, above note 55 at pp 13.
60. T. McGleenan, above note 55, at pp. 12.
61. BMA, Human Genetics: Choice and Responsibility, (1998, Oxford University Press, Oxford).
62. Article 1, Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine.