Q Do employees have the right to be told if a colleague has swine flu, or flu symptoms?
Employees do not have the right to be advised if a colleague has swine flu or its symptoms. However, given the highly contagious nature of swine flu, it may be sensible for the employer to advise those who have worked in close proximity to the infected person so that measures can be taken to avoid further spread of the virus, eg homeworking.
Additionally, such employees may have a reasonable expectation that they will be advised, given the potentially serious health risks posed by swine flu. As such, a failure by an employer to advise them is arguably a breach of its duty to ensure the health and safety of its employees and a breach of the implied term of trust and confidence.
However, disclosing information about an employee’s physical health involves the processing of sensitive personal data under the Data Protection Act 1998. Under the Act, personal data must be processed in accordance with eight data protection principles, which require fair and lawful processing.
In addition, one of the conditions that apply to the processing of sensitive personal data must be satisfied. The most relevant conditions to this scenario are that the employee has explicitly consented to the disclosure, or the disclosure is necessary to enable the employer to meet legal obligations (eg relating to health and safety).
All this week, Personnel Today has brought you highlights from XpertHR’s frequently asked questions.
Other questions answered today include:
Q If an employer has a high proportion of employees absent due to swine flu, can it require other employees to work extra hours to cover the work?
Q Can an employer require its employees to take on different roles to cover absence due to swine flu?
Read the previous day’s swine flu question of the day.
