Medical Evidence

Doctor

I would strongly suggest, that PRIOR to lodging your grievance letter, you discuss with your doctor how the effects of (i) work-related stress, (ii) harassment or (iii) discrimination is making you feel. Share your feelings with your doctor, and how what you are experiencing at work is impacting upon your health. Explain to your doctor that it may become necessary to exhibit your medical records to a Tribunal, so it is important that what you state to your doctor is imputed onto your medical records. Try and see your doctor every two weeks thereafter, and up date him/her with regard to your situation, with express particular as to how it is making you feel. You should apply this practise throughout the grievance procedure, and thereafter, until such time as the grievance/appeal process has concluded.

Should you have to refer to the Tribunal and make a claim, your employer will undoubtedly instruct a medical expert to *view your medical records. Should this be the case, continue to see you doctor. Don’t be afraid to big it up a bit; you need to establish that work-related stress, harassment or discrimination is having a “detrimental impact” upon your mental and physical health. Anything along the lines of not eating, sleeping, night sweats, heart palpitations, anxiety, migraines, a change in habits, avoiding people, not socialising etc, are all important, even if they may seem trivial to you.

*Under the Data Protection Act, you only have to divulge the information on your medical records which is relative to that which you are claiming compensation for. Any other information on your medical records does not need to be exhibited. In our own case, we pulled our own medical records and went through them with a black marker, making copies of the copies to ensure that the print was not seen when held up to the light, or at an angle.

Fit Note

Any fit note your doctor provides you with, make sure you photocopy it 2x and place the copies in a folder for safe keeping. Your employer will undoubtedly say it has ‘misplaced’ one or more of your fit notes in the event you make a claim to a Tribunal. The fit notes you provide to your employer constitutes ‘medical evidence’ of your mental or physical health.

Data Protection Act 1998

Your employer is legally obligated to comply with the Data Protection Act 1998. This means that any fit note you provide to your employer ought to be given to the Human Resources Department, and NOT your line manager. The HR department are legally obliged to keep your fit note in an “organised filing system”. Employers must be careful not to breach the Data Protection Act 1998 when they collect, use and store information about employees’ absences. Details of your health (either physical or mental) are categorised as ‘sensitive personal data’ under the DPA 1998. Therefore, your line manager does not need to know what ailment you are suffering from, or the reason for your absence at work; only the fact that you will not be attending work, and for what duration. Should your employer provide your line manager with any other information than the aforementioned, it would amount to a contravention of the Data Protection Act 1998.

In our own case, we sent our ‘fit notes’ directly to the organisations centralised Human Resources Department. In turn, the HR Deptartment sent the ‘fit note’ to the general manager where we worked, who saw fit to provide it to the line manager who had harassed us. This was a direct contravention of the Data Protection Act 1998, and also of the Human Rights Act 1998.

As a consequence of our employer’s ineptitude to observe it statutory duties under the auspices of the DPA 1998, at the time we lodged our Tribunal *claims, we contended that this “act” amounted to a “fundamental breach” of the implied term of “mutual trust and confidence” (See: Morrow v Safeway). In addition, we invoked Article 8 of the HRA 1998, and reported our employer to the ICO.

*Tribunals do not have jurisdiction to hear breaches of the DPA 1998. However, where an employer has divulged confidential medical information, without the employee’s permission to do so, it would almost certainly amount to a breach of the “mutual trust and confidence”.

Human Rights Act 1998

European law is taken into consideration in Tribunals. Therefore, any violation of your ‘right to privacy’ under Article 8 of the HRA 1998 is actionable. The right to ‘medical confidentiality’ falls under the auspices of the HRA 1998. A breach of an employee’s confidential medical information would very likely amount to a breach of Article 8 of the HRA 1998, making the employer liable to pay the claimant compensation, especially where it was injurious to the employee’s reputation. (Eg. disclosure that an employee is HIV positive).

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