The Employment Practices Data Protection Code

In 2004, the Information Commissioner published Part 4 of the Employment Practices Data Protection Code, dealing with information about workers’ health. This is a Code of Practice and so is not legally binding (see Regulations, Approved Codes of Practice and guidance, Chapter 1). However, it provides clarification of the law and establishes standards which employers are expected to follow.

The Code says obtaining details of workers’ health is “intrusive”, adding: “Workers have legitimate expectations that they can keep their personal health information private and that employers will respect their privacy”.

Employers can only gather information about workers’ health if they can satisfy a “sensitive data condition”, for example, if they need the information to meet their obligations under health and safety law or to prevent discrimination, or if a worker has given their consent freely. The Code covers the following specific areas relating to workers’ health:

• sickness and injury records;

• occupational health schemes;

• information from medical examinations and testing;

• information from drug and alcohol testing; and

• information from genetic testing.

The Code restricts the scope of drug and alcohol testing at work and makes it clear that companies must not use genetic testing to predict workers’ future general health. Such testing may take place only where “a worker with a particular, detectable genetic condition is likely to pose a serious safety risk to others”, or where “it is known that a specific working environment or practice might pose specific risks to workers with particular genetic variations”.

Guidance accompanying the Code confirms the rights of safety reps, saying that they “have a legal right of access to information that they need to fulfil their functions”. Although an employer should not provide data identifying an individual worker without that worker’s consent, “the law does not prevent an employer from providing anonymised information to a safety representative”. Unions generally welcomed the Code, despite some concerns about drug testing.

In May 2010, the TUC issued guidance for safety reps on drug testing at work and called on the government to clarify the law in this area. It says clear guidance on drug-testing is needed to clear up the confusion around the legality of random or routine testing in jobs that are not safety critical.