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To Ask or Not to Ask – Requesting Details of Illnesses in Sick Certificates

by Julie Austin, Associate in the Employment Law Team at McDowell Purcell Solicitors

In a recent case before the Workplace Relations Commission (“WRC”), an Adjudicator awarded €18,000 (approximately six months’ salary) to a sales rep who had been discriminated on the ground of disability. The Adjudicator found that the sales rep had been discriminated against when he was dismissed for a minor misdemeanour shortly after he revealed to his employer that he was taking anti-depressants. The employee revealed his condition after the Personnel Manager made enquiries about the exact medication he was taking. The Adjudicator felt that the “request [was] an invasion of his privacy” and did not accept the evidence given by the Personnel Manager that she wanted to check whether the drugs that he was taking would affect him driving as part of his work.

The case demonstrates the difficult position that employers can be placed in when balancing, on the one hand, their obligation to provide a safe place of work in accordance with health and safety legislation/to provide reasonable accommodation in accordance with employment equality legislation and, on the other hand, the right of employees to privacy.

Sickness Absence Policy
Many employers will have a Sickness Absence Policy in place which provides that employees must provide sick certificates which include not only the expected duration of the absence but the reason for the absence. The legitimacy of these policies was dealt with by the Data Protection Commissioner on foot of a complaint made to the Commissioner relating to a circular from the Department of Education regarding sick leave for teachers (Case Study 11/2012). The Government circular stated that the reason for being out sick / the nature of the illness must be stated on the Doctors certificate for it to be valid.

The Department of Health stated that the purpose of the information was to ensure that there was sufficient information available to the employer to make an informed decision as to whether or not to make a referral to the Occupational Health Service and/or to take appropriate steps, where necessary, in relation to health and safety matters.

Guidance Note Issued by the Data Protection Commissioner
In its decision, the Commissioner stated that, as per Guidance Note 3.7, there are limited circumstances where employers may seek information from an employee in the context of an illness-related absence from work and that any general practice of requiring all employees to specifically disclose their condition or illness to account for their sick absences from work gives rise to serious concerns from a data protection perspective.
The Commissioner stated that employers have a legitimate interest in knowing how long an employee is likely to be on sick leave and whether an employee, following an accident or illness, is capable of doing particular types of work. However, an employer “would not normally have a legitimate interest in knowing the precise nature of the illness” and it would therefore be at risk of breaching the Data Protection Acts if it sought such information. The Commissioner went on to say that “even the consent of the employee may not allow the disclosure of such information to an employer as there may be a doubt as to whether such consent could be considered to be freely given in an employment context”.

The case study highlights that only limited relevant information should be sought from an employee submitting a medical certificate. Seeking excessive sensitive personal data in that context is a clear breach of the Data Protection Acts.

A Balancing Exercise
On foot of the recent WRC decision and the Guidance Note published by the Commissioner, employers should consider whether they ought to be seeking details of the nature of the illness in their Sickness Absence Policy. There is a clear balance that must be struck between the employer’s liability to safeguard employees and making enquires which are deemed excessive, intrusive and may result in a violation of privacy.  Ultimately, employers are often left in a ‘catch 22’ situation. Perhaps the correct balance is to insert into the Sickness Absence Policy a clause which allows the employer to request details of the illness on a “need to know” basis instead of, by default, asking employees to reveal the nature of the illness.

About the author

Julie is an Associate in the Employment Law Team at McDowell Purcell Solicitors. A large part of her work includes providing advice to HR functions on day to day matters. Julie also has extensive experience in all forms of employment disputes including unfair / wrongful dismissal, applications to restrain dismissals, discrimination, redundancies and industrial relations.