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Jenny, Solicitor
Category: Law
Satisfied Customers: 6430
Experience:  Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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I understand that under the data protection act an employer

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I understand that under the data protection act an employer can breach confidentiality if they believe an employee poses a risk to themselves or others.
Can they do this without the employees knowledge?
Are there any guidelines as to what could be considered 'a risk to themselves or others'?
taratill :

Hello my name is ***** ***** I am happy to help you today. Are you the employer or the employee in this situation?

Customer: The employee
taratill :

Please can you explain the situation in more detail?

Customer: Yes, one year ago I was signed off for anxiety for month. I was put on a low dose of anti anxiety Meds and went to counselling, where I was encouraged to become more open and assertive at work to help reduce anxiety and stop low level workplace bullying. My employer noticed and commented on the change in my behaviour, which I explained. My counsellor was very supportive and encouraging and eventually I stopped counselling as she felt I no longer needed it. This week my boss asked if she could write to my GP for an update on my situation. I agred and signed the necessary form. I saw a copy of the letter to my GP after it went out and in it she writes that I had become more assertive at work and she was worried by the personality change, suggesting that I may have been overdosing on anti anxiety meds/having a bad reaction, and giving specific examples. I was shocked as all of the paperwork I signed agreed to my GP sharing confidential information with my employer, not the other way around. I should mention that this new assertiveness has not led to any disciplinary actions against me, and at no point has my employer had a conversation with me about my new attitude (aside from the original one seven months ago) and she never mentioned concerns about medication with me.
Customer: I was under the care of a counsellor and a GP during this period, and they never expressed any concern. I wanted to check to see if it was legal for my boss to disclose specific info about me without my consent and was told no. I am now looking to see if there are any loopholes to that rule.
Customer: Re my first reply, I missed a word, it was one month.
taratill :

Did your employer actually write that she thought you might have overdosed?

Customer: Not overdosed, sorry I shouldn't have written that. She asked if it could be a side effect of my medication,. Or if my medication was mixed with any other pills - could that cause personality change. Or if my medication had been changed or increased recently. But she never asked me any of these questions to my face.
taratill :

Ok I think the problem here is that whilst I can understand why this is unsettling I'm not sure that this amounts to a breach of confidential information for the purposes of the Data Protection Act in the instance where you have consented to a report being requested by an employer. When a report is requested it is entirely normal for an employer to put a summary of how you are presenting at work and why they require the report and to ask questions from your doctor.

Customer: OK. If they share specific instances with my doctor do they have to tell me in advance that they are doing this?
Customer: Is it normal that they would raise these concerns with a doctor before raising them with me personally?
taratill :

It is an interesting question but no, if they have consent to seek a report then you give consent for them to write to the doctor to request one and it would be normal for them to explain the context.

taratill :

You can certainly raise a grievance if it has not been mentioned to you in advance and has come as a shock.

Customer: Thank you. One last thing - I was shocked by this and asked to see a copy of my HR file. Whilst I found records of the conversation I had with my boss it did leave certain pieces of information out I.e. The full explanation I gave for the change in my behaviour. I assume it is too late to ask for it to be changed as it was seven months ago but I didn't know I could request to see a write up of the conversation at the time. Is there anything I could do about that?
taratill :

Yes you can there is no time limit in making a complaint about incorrect notes on your file. You can raise a grievance and ask for this to be amended too.

Customer: That's good to know. In your experience, when people make complaints about incorrect notes (especially if they are several months old), does it degenerate into 'he said, she said' ad neither of you can prove what was or wasn't said?' Is there any way around that?
taratill :

Not really, but if you put your version of events in a grievance it will go 'on file' no matter what they agree to.

Customer: OK. This has been very helpful. I have spoken to my GP, who believes that I am perfectly fine and will say so in his response to my boss. I have been told that even though my boss may disagree with the doctors write up, the doctors would take precedence, and therefore it would be inappropriate for them to express their personal opinions about my health in a reference when tthere is a doctors report refuting this.
Customer: i don't want to remain in my job under the circumstances, but am worried that even if my doctor does write me a positive report my boss will still mention their personal opinions in a reference.
taratill :

I would be incredibly surprised if they did. If they expressed personal opinion in a reference and you suffer a loss as a result you can sue them for negligent misstatement. Most employers would be well aware of that.

Customer: OK, thank you for your time. I was blindsided by this and just wanted to think it through as thoroughly as I could before speaking to my boss.
taratill :

No problem, all the best with it. If you have any further questions please do ask. if I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.

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