Gathering information on workers' health

Employers may only gather information on workers' health for health and safety reasons, to prevent discrimination on the grounds of disability, or if the employee has given their explicit consent, according to a new draft code.

The new code will impact on drug and alcohol testing in the workplace, recruitment practices, occupational health schemes and the genetic testing of workers.

Last week, the Information Commissioner, Richard Thomas, published a draft document of the fourth and final part of his "Employment Practices Data Protection Code".

The code, which will now undergo a three month public consultation, aims to give employers "clear and practical guidance" about how to comply with data protection law when handling information about the health of their workforce.

The document, entitled "Information About Workers' Health", covers issues including the operation of occupational health schemes, medical examination and testing of workers, genetic testing in the workplace, as well as drug and alcohol testing.

'Screening and snooping'
Information Commissioner, Richard Thomas, said: "Information About Workers' Health addresses issues that will be of real, practical relevance to many employers and those they employ.

"I hope, therefore, that employers, workers and representative bodies will seize the opportunity to take part in this consultation exercise so that we can ensure that this guidance is clear and relevant to all employers."

The TUC responded by saying the code would impact on "the growing employer taste for drug and alcohol tests, genetic screening and snooping into personal medical histories."

In particular, it would clarify the position concerning the blanket drink and drugs testing. A TUC spokesperson said: "The draft code says drug and alcohol testing should be limited to workers in jobs that pose particular safety risks."

A useful 'benchmark'
The draft code is based around the Data Protection Act (1998), which places a responsibility on any organisation to process personal data that it holds in a fair and proper way.

The general position is that employers are entitled to obtain, record and store information about an employee's health only if one of the Act's "sensitive data conditions" is met. These include, for example, when the information is required in order for the employer to comply with health and safety legislation, to prevent discrimination on the grounds of disability, or if the employee has given their 'explicit' consent.

Employees are entitled to see any of this information held by an employer.

The code will only provide guidance and will not, in itself, be legally binding. However it will be used by the Information Commissioner as a benchmark against which to judge possible breaches of the Act, and would be taken into account at employment tribunals for example.

As well as the main draft document the Information Commissioner has also provided a supplementary guide to the code and a short guide for small businesses. All three documents can be downloaded from the Information Commissioner's website (see link top right).

The consultation period ends 27 February 2004 and it is expected that the final code will be published sometime next year.

Johnny Thomson