Since data protection laws and equality legislation came into play, employee confidentiality has never been so important for employers. Whilst every business is fully aware that medical disclosures should be treated with respect and compassion, many organisations are also making adjustments for their workers in response. Not only does this look attractive to new hires, but it also reinforces inclusion policies within the workplace.
But, how do employers achieve this happy middle ground where full disclosures are accepted, handled in a lawful manner and provisions are put in place? We cover the fundamentals in our guide.
Whilst it can be helpful, employees have no legal obligation to disclose medical conditions or illnesses to their employers. An employee who consciously chooses to disclose sickness or medical conditions to their employer is entitled to respect and compassion. Likewise, employees who withhold this information are not allowed to be penalised for it.
On the other hand, if an employee lies about a medical condition or fails to disclose something that could affect their ability to do a job, employers are within their right to proceed with either disciplinary action or dismissal. Ideally, you want to encourage a working environment that is respectful of medical conditions or illnesses, meaning employees will be more forthcoming.
Employees will also deal with the paradigm that their refusal to disclose medical conditions could impact their careers in the long run. Many employers are willing and able to make adjustments that support an employee. Without honest conversations being had, it’s hard to know what an employer can do.
It’s vital that all employers remain impartial, especially when an employee has chosen to disclose information. Whether it’s a simple sickness bug or a life-changing condition, employers are under no obligation to disclose details to anyone without the employee’s saying so.
According to the Data Protection Act 1998, any records held that relate to an employee’s physical or mental well-being and health are considered confidential. These must be collected and stored in a way that ensures absolute protection for the employee. Employers could pay a heavy price if the information is shared, such as damage to reputation and potential court cases.
Medical information is considered a special category under data protection law. Utilising cloud-based HR software could be the simplest way to store data. For an employer to request medical information on a job offer, they must have lawful practices and reasoning in place to do so. An applicant does not have to share any details with you, but it’s worth considering what you would need that information for if you asked for it. For example, it is unlawful for an applicant to be refused a job based on a medical disclosure made.
For an employee choosing to disclose medical or illness-related information to their employer, it shows major trust on their part. As it’s not a legal requirement for an employee, it’s clear that they identify their employer as a source of help and support. Once details have been disclosed, you are within your rights to take the information away and consider the next steps for the employee before issuing a response.
There are instances when an employer may be within their right to disclose sickness information to colleagues and managers, for example, if it acts in the interest of an employee’s safety or for purposes of crucial planning. The affected employee can offer the information to colleagues and, as the employer, you can ask if there are any individuals who would benefit from knowing. However, there are also instances where it would be inappropriate, which we cover more below.
Whether the disclosure has come from a long-serving employee or a new starter, their ability to thrive should not be hindered by a poor working environment. Adjustments are often considered to be physical structural changes, such as ramps for wheelchair access, but they can also occur through culture.
For example, encouraging a safe environment where flexible working can be granted is just one-way adjustments can be made. Even holding awareness training can be incredibly beneficial as affected employees can feel safer in the workplace.
Although sickness confidentiality lawfully protects employees, it is also their right to total privacy if requested. For life-changing diagnoses, it’s expected that an employee might need time to adjust and process the information. That’s why, if an employee requests information to remain confidential, you’ll need to adhere to it until they’re ready to decide.
Ensure your sick leave policies are clear and transparent for all employees as sickness can happen at any time. In an emergency, or for an employee dealing with devastating news, filing all information in one place will offer them greater support. Additionally, it’s worth noting legislative changes for any workers who are considered carers.
Since the Equality Act 2010 was produced, employers have had to be more cautious about the questions they ask during interviews. One such example is that it is considered unlawful to probe any job applicant for the disclosure of medical or sickness information. Of course, applicants are allowed to be forthcoming with information.
Within the job application stage, whether internal or external, it is immoral and unlawful to discriminate against someone based on their medical or disability information. For example, an employer can’t justify passing someone up for promotion or hire because they have a disability or illness. Unsuccessful applicants are within their rights to complain to the offending employer and even take it to the court system for review.
Employers are protected if an employee lies or fails to disclose a condition that affects their work or causes a health and safety concern. However, for employees who have recently been diagnosed with a medical condition, or have an existing one that becomes more severe, their choice to disclose it can’t be used for disciplinary action.
It sounds obvious, but it’s so easy to let slip in conversation and disclose medical details. Colleagues catching up over coffee have a tendency to ask after one another and, in these seemingly innocent moments, confidential medical information could be shared. Whilst there is not normally malice behind the action, for the affected colleague it could drastically change their working life. They may feel as though they are being ridiculed or treated differently, for instance.
In an ideal world, employees and employers would offer ultimate transparency. Unfortunately, this isn’t always the case. Taking a step back, are your employees confident enough to tell you about their medical conditions?
If this is something you aren’t able to answer definitively, it could be that employees are not only worried about disclosing information to you, but they may not be aware that their information is protected. Whilst this does have some bearing on a company’s culture, it’s worth considering if there are other factors at stake. For example:
Upon reflection, these questions might evoke responses that require collaboration and teamwork to restore. Although there is a legal requirement for employers to adhere to correct employment and data protection laws, there’s also a moral obligation too. Again, this could be an incredibly obvious point to make, but if employees don’t witness this, they often have nothing to base their trust on.
Transparency between both parties can only work to build better relationships and trust. A transparent culture could also mean employees are forthcoming with this information. Without transparency, it creates a working culture riddled with anxiety.
At the end of the day, trust means everything in business. Just as you approach clients or customers, that same level of trust and effort should also be reserved for employees. Although this takes time, it means that an employer is considered valuable to that employee.
When it comes down to business, employees and employers have their own roles to play. After medical disclosures have been made, employers will recognise that affected employees will be upfront and honest about any further struggles. Likewise, reasonable adjustments will also be made based on the understanding between both parties.
Even if it’s a short-term illness, an employer’s response could make an immense difference to employees. If an employer takes proper and appropriate measures in response to disclosure and supporting that colleague, they’re more likely to remain loyal to their employer and offer excellent business continuity. Without loyalty, employers risk potential damage to reputation, especially when employees actively express their opinions in public spaces.
Workplace adjustments are incredibly beneficial to an employer and an employee. Employers can benefit from increasing their talent pool by installing physical aid or flexible-working solutions. What you do for one employee could make you an aspirational business to work for.
Without any adjustments, it could mean employers are missing out on key talent within their business, especially those who require mobility support or altered working hours.
As well as adjusting your policies and data handling processes, you’ll also need to ensure that corrective measures are taken to support the employee affected by a sudden medical condition or illness.
Luckily, Staffology’s cloud-based HR software offers the exact data protection you need when handling sensitive information. Why not try it today? Get a demo today.
Duane Jackson, May 9th, 2023
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