UK: Health Warnings on Health Information

Last Updated: 7 July 2005
Article by Robert O'Donovan and Rebecca Watson

Originally published April 2005

Paranoia is rife about the new duties placed on employers by Part IV of the Employment Practices Data Protection Code which relates to information about employees’ health. Much of the fear is misplaced and, in fact, although there is a need to take care, there is no need for employers to panic.

Part IV of the code, published last year, appears, on first reading, severely to restrict any employer’s ability to assemble health data. The Code goes as far as to say that "...it will be intrusive and may be highly intrusive to obtain information about your workers’ health".

Does this mean that employers should cease to monitor and consider the health of their workers? Of course not! There are still a number of legitimate reasons for collecting health data.

This Article considers a number of issues which frequently cause concern.

In assembling health data relating to its workers, can a company insist on a medical examination?

Unless consent is given, a medical examination amounts to an assault on the individual concerned. Clearly if the individual attends a medical examination, consent will be assumed to have been given and there is not likely to be a problem.

Problems are more likely to arise where an individual refuses to undertake a medical. Unless there is a contractual obligation that the medical examination be conducted, the individual is probably fully within his or her rights to refuse to be examined.

To overcome that, a provision can be built into the employment contract such that the individual agrees to undergo a medical examination. Even if this provision is included, however, the purpose for which a medical examination is permitted may be limited.

If there is a right to impose medical examinations, then that right is probably fettered by an implied term that the information would be collected reasonably. If it was not collected reasonably it might be in breach of the employer’s duty of trust and confidence.

As a matter of contract law, therefore, one can assemble health information with consent and in practice there is little restriction on its use.

Until the 1998 Data Protection Act, that probably would have been the end of the matter. Some health information might have been subject to the 1984 Data Protection Act but, since the earlier Act only applied only to information held on computer records, its scope was limited.

The 1998 Act extended regulation to health information contained on paper records. Under the new 1998 Act information relating to an employee’s health is far more likely to be caught, so much so, that the Information Commissioner published a specific code regarding information about workers’ health records.

How will employers be affected by the Code?

In terms of working out how the Code works, it is easiest to think of it as creating an entirely separate set of requirements. The result is that some information may be gathered quite legitimately under contract law, viewed in isolation, but yet run foul of the Data Protection Code.

Although it appeared very restrictive initially, the application of the Data Protection Act was severely limited by the courts in the case of Durant (see our Update dated July 2004). The Information Commissioner himself acknowledges the limited application of the Data Protection Act when he writes, in the Code, that the Act "only comes into play when personal information is or will be held electronically or recorded in a structured filing system. This will often be the case, but sometimes it may not, for example, where a line-manager enquires about a worker’s health but does not keep or intend to keep any record of the conversation, or only keeps a note in a general notebook".

In fact, the Act is arguably more limited than that and information contained in a manual personnel file where items are filed in date, rather than subject, order is probably outside the scope of the Data Protection Act. In the absence of a separate section in the personnel file relating to health matters, one comes to the surprising result that health information held by employers is usually going to be outside the control of the Date Protection Act.

What, however, can one do if the Act does apply?

The Act applies to health data which it regards as being particularly sensitive and such information is subject to particularly strong regulation.

Holding or using such information is treated in the jargon of the Act as being "processing" and processing has to be fair. The Act and the Code together set out Parliament’s and the Information Commissioner’s views on what might be considered fair.

First of all, the employee has to consent to information about his or her health being held or used. Consent must be explicit which the Information Commissioner takes to mean that the worker must know the use to be made of the information. Further, the consent has to be freely given, that is to say, there must be no penalty imposed for refusing to consent.

This has led to some to argue that consent contained in the employment contract, which is the obvious place to put it, is not freely given because, if the employee refused to sign, he or she might not be awarded the job and would therefore be penalised.

Another area of difficulty is that the Information Commissioner appears to discourage using health information for anything more than checking the employee is fit to work. That would not allow an employer, for example, to carry out drug and alcohol testing where it wanted to ensure that the quality of output was maintained, whether or not health and safety was an issue. The Information Commissioner suggests that the collection of information through drug and alcohol testing is unlikely to be justified unless it is for health and safety reasons and that stance is supported by case law. However, medical information obtained in order to assess the validity of sickness absence appears to be permitted, although the emphasis should be on fitness to work rather than precise medical details.

What happens if the regulations are breached?

If there is breach, the individual who suffers damage by reason of the breach is entitled to compensation which could include compensation for distress. We are not aware of any reported cases where compensation has been awarded under the head of "distress". Having said that, the possibility of just such an award was acknowledged in the case of Hayes and another v Whitbread plc decided in 1999.

If the information collected is not collected or used in accordance with the "fair processing" principles in the Act, then, perhaps surprisingly, the employer will not be guilty of an offence. What might happen in that instance, is that the Information Commissioner could, if aware of the contravention of the fair processing principle, serve an enforcement notice. One might describe this as a ‘light touch’ approach. Of course, subsequent failure to comply with an enforcement notice could give rise to penalties.

Conclusion On the assumption that there is little point in creating a high powered filing system for most small to medium sized companies, the Data Protection Act is unlikely to apply to health information. The fear surrounding the application of Data Protection Principles is unwarranted. Employers will find that the instances in which they are guilty of a breach of the Act or the Code will be very limited and, even where there is a breach, there is likely to be the opportunity to repair the situation without penalty.

Disability discrimination

The Disability Discrimination Act received Royal Assent on 7 April 2005. The main effects of the new Act are:

  • Removal of the requirement that a mental illness must be "clinically well recognised" before it can amount to a mental impairment.
  • There is an amendment to the definition of "disability" so that a person with HIV, Cancer or Multiple Sclerosis is deemed to be disabled from the point of diagnosis. What this means is that they do not have to satisfy the definition of what amounts to a disability pursuant to the Disability Discrimination Act 1995. In order for an impairment to amount to a disability it must be a physical or mental impairment which has a substantial long term effect on normal day to day activities.
  • There is a positive duty on public bodies to promote equality of opportunities for disabled people.
  • There is an extension of the Disability Discrimination Act to functions of public authorities.

The Act will have a significant impact on public bodies and public authorities rather than the private sector. Accordingly, the Employment Group will be preparing a specific article for its Health and Education clients. If, however, you would like further information on this new Act then please contact Sejal Raja on sejal.raja@rlb-law.com

© RadcliffesLeBrasseur

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.