Schedule 3 and its update (SI 2000 No. 417) is a mess, no question. For
instance, the SI allows insurance companies to process sensitive data
without consent, but not the employer in your scenario.
If you were going for consent you would have to say: "You cannot do your job
unless you can drive for us. We cannot insure you to do so unless we pass
your details to the insurance company. We cannot do this without your
consent. You therefore have a genuine choice: consent or lose your job."
It's not exactly 'freely given' consent, is it? And would an employment
tribunal count is as a fair dismissal?
The second Condition in Schedule 3 might be more promising. The employer
surely has an "obligation ... imposed by law ... in connection with
employment" to insure its drivers. If the processing is *necessary* for
that purpose, then you don't need consent. It's also a more honest
approach.
Regarding Access to Medical Records, as it happens I've just written about
it briefly for my latest book on employment records, and the extract is
pasted below.
Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB
I hereby require any recipient of this message not to use my personal data
for direct marketing purposes.
=======================================
Medical reports
You may occasionally want to obtain a medical report about an employee, for
example where you are not satisfied with their stated reasons for absence on
health grounds, to check the progress of their recovery from illness, or to
check their fitness for a particular task or role.
If the report is not related in any way to treatment of the individual, they
have no right to see the report. So, for example, you might commission a
report from a specialist purely to give their opinion on the employee's - or
job applicant's - current state of health or fitness, and this could
legitimately be withheld from the employee. (Note, however, that if you
want to be able to insist on employees being medically examined you should
make provision for this in the contract.)
You also have the option of requesting a report from the employee's or job
applicant's own doctor, or any medical practitioner who has been involved in
treating them. This is covered by the Access to Medical Reports Act 1988,
and the employee, or prospective employee, has specific rights, including:
· to refuse consent for the employer to be supplied with a medical report,
or even for the employer to ask for one.
· to have access to the report before it is supplied to the employer.
· to ask the doctor to change the report before supplying it, and to attach
their own views if the doctor refuses.
The employer must tell people about their rights, and must get their consent
before applying for a medical report from a doctor who has been treating
them. It is strongly recommended to get this consent in writing, as you may
have to prove to the medical practitioner that you have obtained consent.
The doctor must keep the report for six months, during which time the
individual has the right to inspect it further. The procedure for
individual access is laid down. The employer must tell the individual that
the report has been requested. The individual must then contact the medical
practitioner within 21 days to make arrangements to see the report. The
individual does not have a right to a copy of the report, although it is
common practice for a copy to be provided.
When you receive a medical report you should, of course, keep it strictly
confidential, and only allow access by people who need to be involved in
making any decision. Once the need for the report has passed, you do not
need to keep either the report itself (which should be securely destroyed)
or the consent form. You may want to keep a record of the outcome: for
instance, that a report was commissioned and concluded that the employee was
fit for work.
The employee also has the right, under the Data Protection Act, to apply for
access to their own medical records. The employer, however, is forbidden
from making use of this as a back door means of access. The Data Protection
Act expressly outlaws any contractual provision which tries to force anyone
to get access to their own medical records and show them to, or provide a
copy to, the employer.
The result is, therefore, that you cannot get a report from the employee's
own doctor if the employee doesn't want you to, and you can only insist on
them going for a medical (from a doctor you commission, or from the
occupational health service, for example) if your contract allows you to.
=============================================================
----- Original Message -----
From: "Jim Dunbar" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Wednesday, February 16, 2005 9:47 AM
Subject: release of personal details to insurance companies
Hi
An insurance company who provide insurance for drivers employed in our
transport dept have asked for medical details and details of penalty
points on each driver before providing a quotation etc.. I assume that
we must get consent from the individuals - Is this correct?
Does other legislation that comes into play eg Medical Reports Act 1998?
Would appreciate any opinions on this
Thanks
Jim Dunbar
Information Officer
South Eastern Education & Library Board
Grahamsbridge Road
Dundonald
BELFAST BT16 2HS
E: [log in to unmask]
P: 028 9056 6995
F: 028 9056 6266
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