Growing numbers of employers have used forensic DNA testing to identify the perpetrators of transgressions, including sexual activity, in the workplace. Hairs, cigarette ends and tissues have been used to create DNA profiles.

There are two main areas of challenge to forensic DNA testing in the workplace:

Public sector employees could bring a direct claim for breach of Article 8 under the Human Rights Act 1998 (HRA) - the right to respect for privacy against their employer. In the case of an employee in the private sector, no direct claim could be made under the Act. However, such an employee could use Article 8 to bolster a claim of unfair dismissal by arguing that the employer was in breach of the duty of trust and confidence and was acting unreasonably in conducting a test which infringed their Article 8 right to privacy. Any court or tribunal hearing the case would also be obliged to interpret the employee's right not to be unfairly dismissed in a manner consistent with Article 8.

The employee could claim that the processing of the test data was in breach of data protection principles, entitling them to compensation for damage and distress.

In determining whether Article 8 has been infringed in the workplace, the European Court of Human Rights (ECHR) will assess whether there was a "reasonable expectation of privacy". Arguably, if an employer warns employees, for example, that their offices and desks are liable to be searched for forensic evidence in specified circumstances, the employee's expectations of privacy will be removed. Employers will be in a much stronger position if they have a clear policy in place detailing the circumstances in which searches may be carried out.

It is unclear whether an individual has a reasonable expectation of privacy if they engage in sexual activities in the workplace. In the recent case of X v Y [2004] ICR 1634, the Court of Appeal found that protection only extends to sexual activities carried out in private. However, interestingly in the case of Niemietz v Germany [1992] ECHR 80, the ECHR commented that there was "no reason of principle why...the notion of 'private life' should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world."

Article 8 would confer a higher level of protection if an employer sought to extract DNA samples from the employee. The ECHR recognises that a person's physical and bodily integrity is an important aspect of privacy, and physical intrusion will be much harder to justify. However, it is still unclear whether the right to personal privacy of the body in the workplace is an overriding right that cannot be removed by contract. For example, many employers have successfully included a power to stop and search and to conduct drug or alcohol testing in their contracts of employment.

Under the HRA, interference with an individual's private or family life is permitted as far as necessary in the interests of public safety, for the prevention of crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

A forensic DNA testing policy would therefore only be justified under the Act if the employer could identify a genuine need for it. The courts have found that random drug and alcohol testing may be necessary where public safety or the safety of other workers could be at risk, for example where the employee works in the transport industry or with heavy machinery.

The lawfulness of such a practice may also depend largely on the seriousness of the offence of which the employee is accused. In the US decision of Hargrave v Brown [2001] WL 277846, the defendant was accused of making sexual advances towards the plaintiff, and DNA tests were carried out on a sample of semen found on her skirt. A Louisiana court of appeal held that the defendant's right to privacy was overridden by the plaintiff's right to protection from discrimination. It also commented that the procedures involved in DNA testing were minimally intrusive.

The employer would also have to demonstrate that the practice was a proportionate means of achieving a legitimate aim. Therefore if there is a less intrusive way of achieving one of the legitimate aims described, the less intrusive approach should be adopted by the employer.