Q&As

Where a claimant provides an impact statement and medical records for the purposes of proving disability in an employment tribunal claim, and the employer subsequently forwards these to its occupational health advisers for the purposes of producing a report on the claimant (without the claimant’s consent), what are the claimant’s potential remedies, eg under the data protection legislation and the Access to Medical Reports Act 1988?

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Published on LexisPSL on 08/01/2020

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Where a claimant provides an impact statement and medical records for the purposes of proving disability in an employment tribunal claim, and the employer subsequently forwards these to its occupational health advisers for the purposes of producing a report on the claimant (without the claimant’s consent), what are the claimant’s potential remedies, eg under the data protection legislation and the Access to Medical Reports Act 1988?
  • Use of disclosed information
  • Data protection
  • Access to Medical Records Act 1988
  • Trust and confidence

Use of disclosed information

If a document has been disclosed, the other parties may only use it for the purpose of proceedings, unless:

  1. it has been read to or by the court at a public hearing

  2. the court gives permission, or

  3. the party who disclosed the document and the person to whom it belongs agree

The court may also make an order restricting or prohibiting the further use of the document.

See Practice Note: Disclosure in employment tribunal proceedings—Use of disclosed information.

Data protection

Before processing personal data in a given situation, an employer (as controller) needs to consider whether that processing is lawful under Regulation (EU) 2016/679, GDPR and the Data Protection Act 2018. For information on the key components of lawful processing, see Practice Note: The GDPR and DPA 2018: key data protection issues for employment lawyers—Ensuring compliance with GDPR and DPA 2018—an overview.

Data concerning an individual’s health (health information) is special category data, so before processing health information relating to an employee or a prospective employee, the employer will need to ensure that both:

  1. a lawful condition for processing personal data under Article 6(1) of Regulation (EU) 2016/679, GDPR applies, and

  2. a specific condition for processing special category data under Article 9(2) of Regulation (EU) 2016/679, GDPR applies

The lawful and specific conditions for processing are likely to vary depending on the purposes for which health information

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