Sickness absence is a common concern for all employers and it is common practice that an employer will insist that an employee who has taken sick leave for a specific amount of time will be required to submit a medical cert which clearly outlines the nature of employee’s sickness. In this respect, a pertinent question that one must consider is whether or not an employer has the right to know the nature of an employee’s illness, particularly where the medical certificate provided is vague in detail. The key consideration is balancing the employer’s need to know this information against the potential Data Protection implications associated with the employee’s personal data.
In their Annual Report for 2013, the Data Protection Commissioner (DPC) considered this very question following on from an investigation they had concluded into the matter. In essence, the Department of Education operated a policy whereby a medical certificate would only be acceptable if it highlighted the specific nature of the illness. When the employee escalated this matter to the DPC, the Department informed the Commissioner that this was required as they have a duty of care to employees and students not to expose them to a health and safety risk.
The Commissioner accepted that “in certain very specific circumstances a doctor may be legally obliged to report certain illnesses to an employer for health and safety reasons and we recognise the need for this practice, particularly in the case of contagious diseases. However, any general practice of requiring all employees to specifically disclose their condition or illness to account for their sick absences from work does give rise to serious concerns from a data protection perspective as it does not adequately protect the sensitive personal data of those employees who may have an illness/condition which they consider private or sensitive.”
What an Employer is Entitled to Know
In essence, the Data Protection Commissioner stated that only in exceptional circumstances can an employer insist on knowledge of the nature of the medical condition and aside from this they are only really entitled to know the following:
- That the employee is unfit to work;
- how long they will be unfit for; and
- when they are medically fit to return.
What an Employer Might Be Entitled to Know
As per the findings of the DPC, an employer may be entitled to knowledge of the nature of an illness where there are specific health and safety concerns associated with the employee returning to work. The DPC gave the example of contagious disease which would be a concern for every employer but would also be of particular concern to particular industries such as health care, food preparation, etc. One could presume that an employer working in construction, for example, would be entitled to know the nature of an employee’s injury if it were a back injury and that employee worked in a physically demanding role.
As such, the question needs to be considered on a case by case basis and the general principle is that an employer does not have an overarching right to know the nature of an employee’s illness.
Therefore, commerciality is a big factor in this argument and the employer must have strong grounds for requiring further information on an employee’s illness that there is significant risk to the business, the customers and/or clients, and the service itself.
Written by Olwen Smith. For any further information on this matter, please call the Peninsula Advice Service on 1890 252 923 for a free advice call, quoting SBC2014.
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