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We received a complaint relating to a Department of Education Circular (No. 0060/2010) concerning sick leave for registered teachers.

Specifically, the complaint focussed on certified sick leave and the requirement in the Circular that the nature of illness must be stated in a medical certificate in order for it to be acceptable.

 

Under the Data Protection Acts, medical data falls into the category of “sensitive personal data.” An employer has a legitimate interest in knowing how long an employee is likely to be on sick leave absence from work. It also has a legitimate interest in knowing whether an employee, following an accident or illness, is capable of doing particular types of work. Requiring employees to produce standard medical certificates to cover absences due to illness does not therefore present any data protection issues. But an employer would not normally have a legitimate interest in knowing the precise nature of an illness and it would therefore be at risk of breaching the Data Protection Acts if it sought such information. 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 Office raised the matter with the Department of Education. The Department indicated that the purpose of such 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. It said that in the context of a school, where the employer has a duty of care to its students and staff and where a teacher often has sole and unsupervised access to, and responsibility for, children this was particularly important. It stated that in the Department’s view, there was a strong legitimate public interest in ensuring that there was sufficient information to enable the employer to deal with any health and safety issues that may arise.

 

We accept that there are limited circumstances where employers may seek information from an employee in the context of an illness-related absence from work. Such situations may also permit a health professional to provide details of illness on request to an employer in specific circumstances where specifically warranted in a workplace context. Our guidance in relation to this matter (FAQ 3.7 on our website) makes it clear 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.

 

We indicated to the Department that all of the considerations it had outlined had been considered by a Working Group established by the Department of Finance in 2010, which included representation from various Government Departments, this Office and the Attorney General's Office. This led to the adoption of Department of Finance Circular 09/2010 setting out the Civil Service policy on the management of sick leave. In particular, Section 11 of that Circular states, among other things, that "While the nature of the illness does not have to be included in all circumstances, if it is not stated this may give rise to difficulties if seeking to have the absence discounted." We consider that this approach represents an appropriate balance between the concerns outlined by the Department and the legitimate privacy expectations of employees.

 

Following our intervention, the Department confirmed that it was no longer advising schools/teachers that the nature of illness must be stated in all cases where a medical certificate is required. The Department also undertook to reflect this change when revising the current sick leave circular for teachers in order to ensure compliance with the Data Protection Acts. In addition, the Department indicated that relevant staff had been notified of our findings on this matter.

 

This case study highlights that employers should be aware that, in general, only limited relevant information should be sought from an employee submitting a medical certificate to account for a period of sick absence. Seeking excessive sensitive personal data in that context is a clear breach of the Data Protection Acts.