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How do we handle sickness and injury records?

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In detail

What are sickness, injury and absence records?

This section of the guidance considers some of the key data protection issues when employers handle sickness, injury and absence records.

For the purposes of this guidance only, we distinguish between sickness, injury and absence records in the following ways:

  • Sickness record

This is a record which contains details of the illness or condition responsible for a worker’s absence.

  • Injury record

This contains details of the injury suffered by a worker (which may or may not cause absence). Many employers keep accident records, but such a record will only be an ‘injury record’ if it includes details of the injury suffered by an identifiable worker.

  • Absence record

This is a record that may give the reason for absence as ‘sickness’ or ‘accident’ but does not include any reference to specific medical conditions. You could, and you may prefer, to use absence records instead of sickness records where practical. These are generally less intrusive to workers’ privacy. A simple absence record, without any details of a worker’s health condition is not likely to be special category data.

See also 'How do we limit access to sickness, injury and absence records of individual workers?' below.

Can we process sickness and injury records?

Data protection law does not prevent you from keeping sickness and injury records about your workers. Clearly, these types of records are necessary for you to review your workers’ ability to undertake their work. They are necessary for other purposes, such as identifying health and safety hazards at work and for paying health-related benefits to workers.

However, you should make sure that you do not use sickness and injury records in a way workers would not expect. It is important to make it clear to those who have access to sickness records what they can and cannot do with them. You also need to consider whether full access to the record is appropriate. This links with your fairness and transparency obligations.

Example

Revealing sickness absences to all workers as part of a ‘league table’ is an example of inappropriate use of sickness records. This would not fall within someone’s reasonable expectations of how an employer may handle their sickness information.

An employer must not publish ‘league tables’ of sickness absences of individual workers where everyone can see a person’s sickness, injury or absences. This would be intrusive to workers’ privacy and disproportionate to any managerial benefit.

Instead, the employer could publish totals of sickness absence by department or section, as long as individual workers are not identifiable.

You should check whether your purposes for using sickness records may be further restricted by other legislation, such as the Equality Act 2010 or section 75 of the Northern Ireland Act 1998.

How do we lawfully process sickness and injury records?

Sickness and injury records include information about workers’ physical or mental health. Holding sickness or injury records therefore involves processing special category data.

It is part of your accountability obligations to identify a suitable lawful basis and condition for processing. However, for sickness and injury records, you can likely rely on legitimate interests or legal obligation as your lawful basis and the employment law condition for processing. An employer is likely to need to process sickness records to meet various legal obligations, including:

  • under employment and health and safety law;
  • to meet disability obligations; and
  • to avoid unfair dismissal on the grounds of absence.

It is also likely to be both in the employer’s and the worker’s interests to keep such records.

It’s unlikely that consent as a lawful basis and explicit consent as a condition for processing would ever be appropriate as a basis for processing sickness records. This is because a worker is unlikely to have the ability to freely consent to the processing, especially in cases where an employer may use sickness absences in potential disciplinary proceedings. As already noted above, employers also have obligations under employment law which means the worker won’t have any real choice to consent.

For more information on lawfully processing health information, please see 'How do we lawfully process the health information of workers?'

How do we store sickness and injury records?

Where possible, you should keep sickness and injury records containing details of a worker’s illness or medical condition separate from other less sensitive information, for example a simple record of absence. As noted above, a record of absence does not contain details of a worker’s health condition. This helps ensure that staff are not accessing information on a worker’s health when they only need information on absence or the circumstances of an accident at work.

See 'How do we limit access to sickness, injury and absence records of individual workers?' below for more information.

It is a good idea to review how you currently keep your sickness and accident records. If necessary, you should change the way you keep information on sickness and accidents.

You must ensure you take appropriate measures to keep sickness and injury records secure, especially given the sensitive nature of the information. You could do this by keeping the sickness record in a specially protected computer file, perhaps using encryption. If you use physical records, you could keep it in a sealed envelope, stored in a locked filing cabinet.

How do we limit access to sickness, injury and absence records of individual workers?

You should not make the sickness, injury or absence records of individual workers available to others, unless it is necessary for them to do their jobs.

Managers are usually provided with information about those who work for them, where this is necessary for them to carry out their managerial roles. For example, a manager can access a worker’s sickness record to investigate repeated or long-term absence. You should make sure that managers are aware of the sensitive nature of sickness and injury records and how to handle them appropriately.

How much personal information from sickness records people in your organisation can access depends on the purpose of your processing.

You should make it clear to those accessing sickness, injury and absence records when it is and is not necessary to access the full sickness or injury records.

Example

An organisation has a reasonable adjustments ‘passport’ scheme in place. This stores details of a worker’s health condition and the reasonable adjustments they need because of their health condition. This enables the organisation to keep a record of the worker’s agreed adjustments. If the worker moves to a different team, their new manager can access this ‘passport’.

The organisation needs to inform their facilities team of the reasonable adjustments necessary to the worker’s workstation. The facilities team can see what reasonable adjustments the worker requires so they can set up the workstation as needed. However, it is not necessary for them to see details of the workers’ health condition.

You should not use sickness or injury records when you only need information about the length of an absence. Similarly, you should not use sickness records for a particular purpose when you can use records of absence instead. For example, you do not need to use a sickness record when you only need information on absence or the circumstances of an accident at work.

Example

When an employer is calculating a benefit, admin staff may only need to see the length of a worker’s absence, rather than details of the sickness responsible for their absence.

Can we share information from sickness or injury records?

You should only share information from sickness or injury records about an identifiable worker’s illness, medical condition or injury with third parties where it is necessary and proportionate to do so. This might include where:

  • there is a legal obligation to do so;
  • it is necessary for legal proceedings; or
  • the worker has given explicit consent to the sharing.

This is not an exhaustive list. There may be other situations that you can justify.

You should make sure that all those who deal with workers’ sickness or injury records are aware of the circumstances where there may be a legal obligation to share the information.

It is important to remember that this does not stand in the way of sharing the number of days of a worker’s absence, for example when giving a reference. It’s also important to point out that this doesn’t prevent you from sharing information from a worker’s sickness or injury record if the information is relevant to you responding to a medical emergency.

See 'When can we share workers’ health information?' for more information. This also addresses circumstances involving disclosing information about a worker’s health to other workers.

Checklist

☐ We distinguish between sickness, injury, and absence records.

☐ Where we only need to know information about the length of a worker’s absence, and where practical, we consider using absence records instead of sickness records.

☐ We limit who can access and use information about workers from sickness and injury records, including whether they can have full access to the information of workers. We ensure they know what they can and cannot do with the health information.

☐ We only use sickness and injury records in ways that workers would reasonably expect.

☐ We have identified a lawful basis and a special category condition for processing sickness and injury records.

☐ We only share information from sickness or injury records about a worker’s illness, medical condition or injury with third parties where it is necessary and proportionate to do so. For example:

  • there is a legal obligation;
  • it is necessary for legal proceedings; or
  • the worker has given explicit consent to the sharing.

You can also view and print off this checklist and all the checklists of this guidance on our checklists page.