The question of whether staff have a right to know if a colleague has become infected with the virus brings two separate duties into conflict. On the one hand, the employer owes a duty to take reasonable care of its employees’ health. On the other hand medical information is sensitive personal data and as such there are limited circumstances in which it can be disclosed to third parties without the consent of the data subject, i.e. the employee infected with the virus.
Our view is that in most cases this conflict is capable of being resolved. Staff can be told in general terms that a colleague has tested positive. They can of course also be told what steps the employer has taken to contain the spread of the virus at work (deep clean of the office for example, if appropriate). Individuals who have come into contact directly with the individual will probably have the right to be told that they personally are at increased risk of infection. For staff generally it will not normally be necessary to disclose the name of the infected staff member. If people can work it out based on information provided by the employer, or the rumour mill puts two and two together to work out who it is, then that is at most a technical breach of the data protection rules in these circumstances but reduces the risk of breach of the employer’s health and safety obligations. In circumstances where an office is shut completely (i.e. no one at all is attending the office) then there is likely to come a point where colleagues can no longer be a source of infection in the office and so there is no need to make any general statement if staff subsequently become unwell. If you have key workers attending the office but the majority of staff are prohibited from entering then only that small group should be informed, in case there is scope for infection via the office.
More difficult questions can arise. Given that many people in the UK will be infected and are unlikely to receive formal testing, many staff may not know for sure if they are infected. The employer’s messaging needs to be clear whether someone has tested positive or suspects that they are infected with the virus. Secondly we have had clients ask what to do if staff insist on being told the identity of the member of staff who has tested positive (or is suspected of having the virus) because they want to take appropriate measures to protect their own health. This is clearly difficult and employers have to balance any employee relations consequences if staff generally think that they cannot trust the employer to look after their interests at work, as against the right of the individual who is infected (or suspects they are infected) not to have others informed of their identity and state of health. In practical terms speaking to the individual to see if they consent may be the best way forward, but of course if the individual is too ill to give consent, or declines, this leaves the employer in a dilemma. We anticipate that employers will try to hold the line rather than disclose the names of infected colleagues unilaterally.