Insights

New guidance released from the ICO to help companies manage their employees’ health information

29.09.2023

4 minute read

Authored by

Elizabeth, an experienced employment solicitor specialising in discrimination cases and maternity-related issues, offering balanced and practical solutions for workplace matters.

Elizabeth Maxwell

Associate Solicitor

Message

Share

LinkedIn icon

Employers have welcomed the latest updated guidance just released from The Information Commissioner’s Office (ICO) on how employers should process health data about their workers.

It is a notoriously sensitive subject to manage, and although the latest guidance does not propose any radical changes in the way companies fulfil their obligations in respect of data management, it does provide some very helpful examples about how to deal with this ‘special category’ data to help ensure that there can be no room for error.

‘Special category data’ is afforded the highest level of protection under data protection legislation (UK GDPR and the Data Protection Act 2018). Medical information is personal and sensitive and understandably employees will not always want private details shared with their employer. Yet employers are required to process information about the health of their employees for many different reasons such as paying sick pay or maternity pay or making reasonable adjustments for disabled employees as required under the Equality Act 2010. The latest guidance includes a section detailing the various lawful grounds which may be relied on for processing this type of data including:

  • performance of a contract;
  • complying with a legal obligation;
  • legitimate interests; and
  • (rarely) vital interests.

As we are dealing with ‘special category data’ employers will also need to demonstrate that processing the data is also necessary for the purposes of one or more of the additional grounds under Article 9 of the UK GDPR (and potentially Schedule 1 of the Data Protection Act 2018) which include:

  • complying with employment, social security and social protection law;
  • the defence of legal claims; and
  • substantial public interest.

The guidance warns against employers relying on consent as a legitimate ground to process data explaining that:

‘This is because, as an employer, you will generally be in a position of power over your workers. They may fear adverse consequences and might feel they have no choice but to agree to the collection of their health information. Therefore, they cannot freely give their consent. If the worker has no genuine choice over how you use their information, you cannot rely on consent as a lawful basis.’

The second part of the updated guidance focuses on various workplace scenarios where processing health data may be an issue. It looks at the handling of data comprising of sickness and injury records, occupational health schemes, medical examinations and testing for drug and alcohol use as well as providing examples of when workers’ health information will need to be shared.

This revised guidance is part of a wider campaign by the ICO to update its Employment Practices Data Protection Code to provide greater information and resources for employers. In doing so it’s aim is to promote greater certainty for businesses and organisations about compliance and data protection rights.

We recommend employers review the guidance and consider their current practices. The ICO are really pushing companies to take more responsibility for compliant data management. If you have any concerns about the way in which you process the medical data of staff then please do not hesitate to contact a member of our team.

How can Morr & Co help?

If you have any questions or would like any further information on the content of this article, please do not hesitate to contact our Employment team on 01737 854500 or email info@morrlaw.com and a member of our expert team will get back to you.

Disclaimer
Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.

Stay informed

Receive regular insights and updates from our legal experts.

Get in touch

Receive regular insights and updates from our legal experts

Please choose from the below options so that we can direct your enquiry to the right team member

Sorry, we do not provide criminal law advice.

You may wish to contact your local Citizens Advice Bureau or your local Law Centre, who will be able to help you find support.

Sorry, we do not provide advice on consumer disputes.

You may wish to contact your local Citizens Advice Bureau or your local Law Centre, who will be able to help you find support.

Sorry, we do not provide advice on benefits related disputes.

You may wish to contact your local Citizens Advice Bureau or your local Law Centre, who will be able to help you find support.


Please note that we are currently only providing this service to our existing clients.

You should bear in mind that if your dispute is valued at less than £10,000 you will not be able to recover your legal fees from your opponent.

You may wish to consider consulting the Citizens Advice Bureau or your local Law Centre as an alternative.

In order to enable us to give you an accurate estimate of our likely costs to advise you, we will need to review the key documents. As a guide, our costs for reviewing the key documents and giving you initial advice are likely to be in the region of £1,750+VAT.

Before we can confirm whether we are able to act for you, we need to carry out a conflict check to make sure that we have not previously acted for your opponent.

Assuming our conflict check is clear, we will contact you to arrange a time for you to speak to one of our solicitors. Please can you confirm that you still wish to proceed with this enquiry. *

Our fees for debt recovery work typically start at £1,750 + VAT, so it is unlikely that we would be able to help you on this occasion. You may wish to contact the Citizens Advice Bureau or your local law centre, who may be able to help resolve your issue.

We are sorry that we are not able to help you on this occasion.

You may wish to contact the Citizens Advice Bureau or your local law centre, who may be able to help resolve your issue.

If your claim relates to an incident that took place more than 4 years ago, you may not be able to bring a claim unless you were under 18 years old at the time.

We are sorry, but it is unlikely that we are able to help you with your claim on this occasion.

You may wish to contact the Citizens Advice Bureau or your local law centre, who will be able to help you find support.