Employers cannot manage the employment relationship without using their employees’ data. Data is used by employers on a daily basis for a variety of tasks ranging from monitoring sickness absence, administering benefits to paying salary using payroll.
To process this data lawfully most employers rely on provisions in the employment contract authorising them to do so. However, employers need to be aware that simply including a provision in a contract may not be enough if the employer is using a specific class of data; sensitive personal data.
Sensitive personal data includes data about an employee’s health, sexuality, diversity and political beliefs. To use this data lawfully employers need the employee’s express consent to do so.
Problems can arise for employers in a number of situations where they need to use sensitive personal data.
A common problem area is when a referral is made to a company’s occupational health team for an opinion and prognosis on an employee’s health problems. There are two main components to occupational health records: transferable information and the confidential clinical record. Transferable information is information that is generally accessible by the employer, the employee and enforcing bodies like the HSE – it includes information about accidents at work, monitoring data and exposure to hazards. The confidential clinical record is specific to the employee and his or her health during employment. This is sensitive personal data.
When the referral is made to Occupational Health it must be made with the employee’s consent. However, relying on consent may not be enough to protect the employer from a claim.
Employers must ensure that when they make a request for a medical report from Occupational Health the request is focussed and limited to the purposes for which consent is obtained.
They also need to make sure that any medical information provided to Occupational Health is focused. It is common practice for HR practitioners making the referral to send all sickness records they have about the employee. But what if the employee has suffered various health problems over the years, including conditions that the employee would not necessarily want his or her line manager or the wider business to know about? If the Occupational Health report refers to these historical conditions there could be claims by the disgruntled employee.
The consent that has been obtained is unlikely to be enough to protect the employer from a claim. Potential claims include a breach of the employee’s right to privacy and breach of the Data Protection Act. The issue could also lead to claims of discrimination. Therefore employers should not complacently rely on the consent received when requesting a report but must properly consider the particular purposes for which the report is needed.
Our experience is most businesses do not send a copy of the Occupational Health referral to the employee. Best practice must be to do so. This will avoid any potential problem when the employee reads a report containing lots of historical medical information ; it makes it difficult for them to claim they did not agree to it being referred to.
Another potential problem area is the use of sensitive personal data about an employee’s sexual orientation. Many large employers have relationship at work policies obliging their employees to disclose information about romantic relationships with work colleagues. Of course this policy applies to same sex relationships.
Again the problem employers often omit to consider is how that information is used. The business justification for disclosure of a relationship with a work colleague is to enable the employer to ensure that the parties to the relationship do not either benefit or suffer because of it. Sometimes employers post information about the existence of a relationship with a colleague on their intranet.
What the policy authors overlook is that the employer needs express consent to process information about sexuality which of course this is. Therefore posting such information on the company’s intranet, unless the employee expressly consents to this, will be a clear breach of the Data Protection Act. There may also be claims for discrimination if the employee suffers less favourable treatment following publication of the information.
Employers therefore need to take care when relying on policies that allow them to use data. If the data concerned is sensitive personal data reliance on the policy is not enough to protect them from claims.
Helen Farr is a Partner in the HR Law team at Fox Williams LLP and can be contacted at HFarr@foxwilliams.com.