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Thanks to Butterworths.co.uk Dangers in gene testing workersA recent report from GeneWatch UK highlights the potential for bias against employees as a result of genetic testing. Pauline McArdle, employment partner at solicitors Denton Wilde Sapte, explains the current state of the law to Sarah Taylor� According to a recent report from GeneWatch UK, Genetic Testing in the Workplace, UK law allows employers to refuse someone a job, or even deny an existing employee access to employee benefits (such as a new pension scheme), on the basis of their genetic test results. So how much of a problem is genetic discrimination for employees and prospective employees? Pauline McArdle, employment partner at solicitors Denton Wilde Sapte, explains: "It�s right that there�s no specific legislation in this country at the moment that prohibits employers from using genetic tests. However, genetic testing is not yet particularly widespread in the UK and I think that that�s recognised by the Human Genetics Commission (HGC). In their report Inside Information they conclude that at present there is no systematic use of personal genetic information in employment. In an earlier 1999 report the Human Genetics Advisory Commission (as the HGC then was) stated that it had only identified one UK employer - the Ministry of Defence (MoD) � that tested employees for a genetic disorder, so from that perspective it�s not a big problem for employees." McArdle goes on to review the effect of existing legislation: "Certainly the Disability Discrimination Act 1995 (DDA) wouldn�t cover somebody who had a genetic predisposition to something, but who wasn�t yet suffering symptoms. The DDA provides protection for individuals who suffer from a long-term impairment, and long term means it has lasted 12 months, or is likely to last for 12 months. There might be some argument to say that indirect sex or race discrimination legislation protects you if it could be proved that a particular sex or race was more prone to certain illnesses than others, but it would be a difficult and complicated argument. You might also have an argument under the Human Rights Act 1998 because your right to a private life had been violated, but again, it is all very nebulous. So overall there isn�t much specific protection, but the risk to employees is not yet great, because the practice isn�t widespread. It�s not something I personally have come across with my clients, though it�s getting a higher profile so possibly more people will be concerned about it in the future." Can an employer insist that an employee or prospective employee submit to genetic testing? "There's no specific law prohibiting it," says McArdle. "Of course existing employees could object to being tested unless their contract provides for it. Prospective employees are more vulnerable because they haven�t got a contract to protect them. You could run an argument about human rights and it might depend very much on what sort of employment it was. It might also depend on whether the employer was just testing generically for anything or whether they were specifically testing for a predisposition to an illness of particular concern in that job. For example, the MoD tests for sickle cell disease, which causes problems for pilots at high altitudes. The HGC Report makes a number of recommendations one of which is that employers must not demand that their employees take tests, but of course that doesn�t have the force of law." She goes on to explain the Government�s current position on the issue: "They rightly comment on the danger of individuals being denied employment opportunities, but they also recognise that the appropriate use of this type of testing might be important for occupational health and safety reasons. They have previously accepted a recommendation by the Human Genetics Advisory Commission for a review of genetic testing in the employment field by 2005. The White Paper, Our Inheritance, Our Future, states that the Government will introduce legislation making it an offence to test a person�s DNA without their knowledge or consent except as part of medical treatment where consent is impossible to obtain, or by the police or the courts, but there�s no timetable given for that. It�s probably not on the front burner." "The European Convention on Human Rights and Biomedicine bans all forms of discrimination on the grounds of a person�s genetic makeup and only allows for tests to be carried out for medical purposes. However, although the Government recognises the importance of the Convention, it has said that there are several areas in which domestic policy and legal provisions are undergoing development following consultation and that these matters need to be resolved before the UK can consider signing the Convention. It therefore seems unlikely that the United Kingdom will be signing in the near future." (27/11/03) If you have any comments about this or any other news item or feature, please respond via e-mail to: [email protected] Legislative annotations in other services:-
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