Theoretically, an employer’s health questionnaire should only collect as
much information as would be relevant to assess suitability for the job in
question. It would be a breach of data-protection rules to collect personal
information that is irrelevant or excessive.
The Faculty of Occupational Medicine’s
ethical guidance states that: “Health screening, even by questionnaire, is an
invasion of privacy and data protection principles require that information
sought is adequate, relevant and not excessive in relation to the purpose and
used only for the declared purpose. The use of health assessment must be
justified. Thus asking questions about matters that do not affect the outcome
of the assessment process would not be justified.”4
Protection Act 1998 sets out the principles for the collection and use of
health information. The Information Commissioner’s Office is an official body
which issues codes of practice on data privacy. They state that if employers
wish to collect information on their workers’ health, they should be clear
about why they are doing so and satisfied that the intrusion of privacy is
justified by the benefits that result.5
Most questionnaires will ask about
disability, and in particular ask the employee whether any reasonable
adjustments would be desirable or necessary.
Although it is best practice for a health
questionnaire only to be read by an occupational health professional, in many
situations they may be seen by human resources staff.
When faced with a form that asks about HIV,
individuals may prefer to speak in confidence to an appropriate member of
staff, either in addition to, or as an alternative to, filling in a
questionnaire. This gives an opportunity to explain in more detail how they are
successfully managing their condition and be on hand to answer any questions,
rather than rely on a form.6
It may also be possible to explain that
there is an underlying medical condition which is covered by the protection of
the DDA and which may require reasonable adjustments, without specifying HIV.
Doctors sometimes call this “giving the prognosis not the diagnosis”; a GP or
occupational-heath doctor may be able to provide supporting evidence concerning
the employee’s health, on this basis.
Under the anti-discrimination legislation,
employees are not required to disclose their disability at any specific moment.
While reasonable adjustments can’t be made until the employer is aware of the
disability, the employee can disclose this at any stage he or she chooses.
Nonetheless, misleading information on a
medical questionnaire could have consequences for the employment contract. If
an employee incorrectly answered “no” to a question about HIV infection and
this was subsequently discovered by the employer, it could constitute a breach
of mutual trust, and so invalidate the employment contract.
Seven per cent of employers have dismissed
an employee while in employment because they had given misleading health information.7 Nonetheless, in some cases, employers may leave themselves open to a
challenge of direct disability discrimination in doing so.
It may be preferable to leave a question on
a form blank than to answer “no”. As such, the employee is simply not
answering, which means he or she is not disclosing, but isn’t misleading
either. It may also be easier to disclose HIV at a later stage if the answer
has been simply left blank.