Getting personal

Independent schools keep too much personal information about their employees, say John Richardson and Sharon Liburd. Here, they clarify the legal and moral requirements to protect both the school and its staff

Have you ever had skin rashes, varicose veins, hay fever, period or prostate problems? These are just some of the questions independent school employers ask their staff.

Recently, ATL has seen a sharp rise in members’ complaints about the amount of health information that employers are increasingly demanding to see and retaining on file. One member stated: “I have worked at the school for twenty years and, for the first time, I and all my colleagues have been asked to complete an extensive medical questionnaire which, in my opinion, is wholly unnecessary and invades my personal privacy.”

Requests for detailed medical information are the most contentious, but the problem doesn’t stop there. Documents that employers have asked to retain on file include copies of a birth certificate, passport, driving licence, personal medical information and utility bills.

Of course, asking for information about health is not intrinsically a bad thing; it may be a legal necessity and possibly to the employee’s benefit. But many independent school employers are going beyond what is legally required, necessary, or desirable. “It’s not us, it’s the inspectorate” is a common employer’s refrain when challenged. So, do the inspectors expect copies of staff’s personal information to be kept on file? What legislation makes requests for personal information justified?

Requirements of the inspectorates
Roughly half of 2,400 independent schools in the UK are inspected by Ofsted and the other half by ISI (there are two other small inspectorates).

Ofsted is unequivocal that it does not require employers to retain copies of personal information relating to staff: “Schools do not have to retain documents evidencing identity once these have been verified by the person responsible for doing so in the school, and the single central record includes the name of that person and the date the check of original documents took place.”

ATL asked Ofsted about medical questionnaires. It answered: “If schools are asking staff to complete extensive and intrusive medical questionnaires that is… not in response to Ofsted expectations.”

Christine Ryan, chief inspector of ISI, explains that the inspectorate expects to see: “…a school’s compliance with legal requirements, most of which for independent schools are detailed in the Education (Independent Schools Standards) (England) Regulations, the Early Years Foundation Stage Statutory Framework and other legislation such as SENDA. Neither the regulations nor the inspectorate require schools to provide extensive and detailed personal information on health and medical conditions.”

There is no legal requirement for staff to complete medical questionnaires. The main regulatory requirement for health is the DfE’s guide Fitness to Teach. This can be satisfied by a simple declaration by the member(s) of staff.

Schools should keep a central record stating that any necessary documents have been seen and verified, by a named person on a certain date. Of course, any impediment that might interfere with their ability to carry out their professional duties should be declared.

If there is concern about an employee’s health or capability, then it should be addressed sensitively. The matter should be referred to an occupational health adviser or permission sought to contact their GP. Anji Couch, ATL regional official, suggests how this might be done: “In Gloucestershire, we have successfully promoted the service of a private occupational health service to independent schools. This is a cost-effective way for the employer to obtain reports on ‘fitness for employment’, or recommendations for ‘reasonable adjustments’, while retaining staff confidentiality.”

Employers have every right, and in some instances are legally obliged, to see relevant documentation. For example, the UK Border Agency guidance states that employers should keep, securely, a copy of any documentary evidence used to support an individual’s right to work in the UK.

Data protection
Under the Data Protection Act 1998, “sensitive” personal data includes information about a person’s physical or mental health. The Employment Practices Data Protection Code, which came into effect in June 2005, confirms that the collection and use of information about workers’ health contravenes the law unless a sensitive data condition is satisfied. This means that employers should only collect health information where it is necessary for the protection of health and safety, to meet a legal obligation (eg to prevent disability discrimination) or if each worker affected has given her/his explicit consent. Consent must be given freely and can be subsequently withdrawn, without sanction. Employers that would like to collect and hold information on their workers’ health should be clear about the purpose and satisfied that this is justified by real benefits.

Employers should ensure that data protection safeguards are in place, ie they must tell their workers that the information is being kept, what the purpose is, and
that they have a right to see it.

Health and safety regulations
Under section 2 of the Health & Safety at Work Act 1974, employers have a general duty to ensure, as far as is reasonably practicable, the health, safety and welfare of their employees. There is an implied duty on employers to ensure that employees are medically fit to carry out their duties. Employers also have a duty to make sure that non-employees, such as pupils/students, are not exposed to risks to their health and safety by the work activities.

Consequently, it would be legitimate for an employer to seek information to confirm an employee’s fitness for work, subject to the provisions of the Data Protection Act and Code. The Management of Health & Safety at Work Regulations 1999 oblige employers to make an assessment of the risks to which employees and others may be exposed at work. The assessment involves considering the work activities, identifying who might be harmed or at particular risk (eg expectant and new mothers) and evaluating the risks from the identified hazards. It should help to identify information relevant to risks to the health and safety of employees and others affected by work activities, such as pupils/students, whether on or offsite.

Disability discrimination
An employer is under a duty to make reasonable adjustments to the physical features of premises or to any work arrangements that place a disabled person at a substantial disadvantage, in comparison with those who are not disabled, according to the 1995 Disability Discrimination Act. The employer must have sufficient accurate, reliable and relevant information about the disabled worker to enable it to make reasonable adjustments.

The Act is being replaced by the Equality Act 2010 (from October 2010) which covers the various forms of discrimination and will consolidate the provisions relating to reasonable adjustments.

The Government believes that pre-employment health-checks are one of the main reasons why disabled job applicants often fail to reach interview stage. Section 60 of the Equality Act states that an employer must not ask a job applicant about her/his health (including any disability) before offering work. However, it does not apply to questions that are necessary to determine: 
• whether the job applicant is able to undergo an assessment (such as an interview or selection test);
• whether the duty to make a reasonable adjustment will arise in connection with any such assessment; or
• whether the job applicant will be able to carry out any function that is intrinsic to the work concerned.

It is clear from the above that, in certain circumstances, it may be necessary for an employer to seek from current or prospective staff information about their health. However, managers should not have access to more information than is necessary for them to carry out their management functions.

John Richardson is the ATL national official for independent schools and Sharon Liburd is an ATL solicitor.

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