Covid and employer duty of care question

[bmwmike]

Hi

Keeping it brief on purpose but hopefully enough info.

Thinking back to December timeframe, peak covid, did an employer have a duty of care responsibility to notify staff that a close working/contact employee had covid symptoms and had gone for a test?

I.e. two people working together, both employees, one goes off sick with symptoms and gets a test, notifies employer, but employer says nothing to other employee.

At that point there were symptoms, and known close contacts, but no actual test result. Employer arguing it was not their responsibility to notify close contacts, even though they were aware both of the need for a test and who was in contact.

This is social care setting, public sector, dealing with vulnerable persons.

Edit to add,person later tested positive, in case it matters.

thanks

Edited by bmwmike on Wednesday 28th July 13:32

[Countdown]

I would have thought yes - surely it's just sensible / good practice to reduce the risks of transmission and illness/death?

[InitialDave]

Surely revealing this to other employees would run up against a GDPR issue?

[BertBert]

Perhaps it would be helpful to clarify your question. Who are you thinking of - duty of care to whom? The other employee or the vulnerable people being dealt with by the employees?

[bmwmike]

BertBert said:

Perhaps it would be helpful to clarify your question. Who are you thinking of - duty of care to whom? The other employee or the vulnerable people being dealt with by the employees?

The other employee.

[bmwmike]

InitialDave said:

Surely revealing this to other employees would run up against a GDPR issue?

How so? "hello staff member 2, just to make you aware someone in our office went off sick with potential deadly disease, so perhaps use this information to inform your decisions before visiting a shielding relative".

Cant see any GDPR issue there tbh.

[InitialDave]

bmwmike said:

InitialDave said:

Surely revealing this to other employees would run up against a GDPR issue?

How so? "hello staff member 2, just to make you aware someone in our office went off sick with potential deadly disease, so perhaps use this information to inform your decisions before visiting a shielding relative".

Cant see any GDPR issue there tbh.

You're revealing someone else's medical details without permission, and there's only a couple of employees, so they would still be identifiable even if you didn't say it was them specifically.

[bmwmike]

Countdown said:

I would have thought yes - surely it's just sensible / good practice to reduce the risks of transmission and illness/death?

Agree, but i'm curious to know if there is a legal duty or indeed how would I even find out for sure. Cant imagine a regular solicitor would be much use (or maybe I just have a dodgy one )

[anonymous-user]

Should have pinged on track and trace. Anyhow, yes the employer has a duty of care to the other employees. GDPR is about securing data safely, has nothing to do with you cant tell anything to anyone. Plus GDPR doesnt come into it when you have a legal obligation.

[bmwmike]

InitialDave said:

bmwmike said:

InitialDave said:

Surely revealing this to other employees would run up against a GDPR issue?

How so? "hello staff member 2, just to make you aware someone in our office went off sick with potential deadly disease, so perhaps use this information to inform your decisions before visiting a shielding relative".

Cant see any GDPR issue there tbh.

You're revealing someone else's medical details without permission, and there's only a couple of employees, so they would still be identifiable even if you didn't say it was them specifically.

For clarity the infected person notified management who failed to act. The infected person had notified in good faith that the information would be shared. There are a lot more than two people involved, but I mention one other person as thats the scenario im interested in. There was never a need to mention the actual subject just the fact of a potential incidence of a highly infectious virus during a pandemic, during a period (christmas) when staff maybe visiting relatives.

Appreciate your point about GDPR but I also think a genuine need to communicate the info would mean its allowed within GDPR even if it did apply, which i dont think it does. That comes back to: did the employer have a legal duty of care in this situation. If they did, GDPR would support and facilitate that.

[bmwmike]

flashbang said:

Should have pinged on track and trace. Anyhow, yes the employer has a duty of care to the other employees. GDPR is about securing data safely, has nothing to do with you cant tell anything to anyone. Plus GDPR doesnt come into it when you have a legal obligation.

Yes, should have pinged on T&T and it didnt. When asked, they said "that happens sometimes" and when asked if the information had been supplied, they cited GDPR lol. The infected employee claims to have supplied the relevent info to T&T so we have to trust that.

The employer, incidentally, are claiming that they have no duty of care precisely because thats T&T responsibility.

[selwonk]

According to the ICO guidance:

It is also important to note that guidance from the Information Commissioner's Office (ICO) states that while employers should keep staff informed of confirmed or suspected cases of Covid-19 in the workplace, they should avoid naming individuals if possible and shouldn’t provide more information than necessary. So the employer can say that there are cases of (confirmed or suspected) Covid-19 within the workplace, but should be cautious about giving further details.

Edited by selwonk on Wednesday 28th July 16:26

[InitialDave]

flashbang said:

Should have pinged on track and trace. Anyhow, yes the employer has a duty of care to the other employees. GDPR is about securing data safely, has nothing to do with you cant tell anything to anyone. Plus GDPR doesnt come into it when you have a legal obligation.

The ICO guidance is that you avoid identifying an individual employee when informing staff there has been a case. A very small number of rmployees makes this difficult.

But if the employee gave the information to their employer intending that they tell their coworkers, they should be fine to do so.

[poo at Paul's]

Would an employer rather have a ticking off from ICO about GDPR or a lawsuit from an employee over Duty of Care?

I'd think that provided only minimal details were provided, ie you may have been exposed, you should stay off work and isolate until xxx date etc, would be fine and perhaps a simple duty that the Company should undertake?

[bmwmike]

With respect isnt the question of data protection a little off topic? There are number of ways a notification could be delivered to staff alerting of potential risk without naming or otherwise revealing who dunnit.

The question is: did the employer have a legal duty of care to other staff members of a potential infectious disease risk *before* the actual positive result came back.

I would personally say Yes, and especially considering other factors such as pandemic, mid-winter, potential for visiting vulnerable relatives, etc.

Do i need a legal lawyer type person and if so, how to find someone? My solicitor struggled with a house purchase, bless em..

[Countdown]

bmwmike said:

Agree, but i'm curious to know if there is a legal duty or indeed how would I even find out for sure. Cant imagine a regular solicitor would be much use (or maybe I just have a dodgy one )

I would have thought it was covered under the HASAW Act. Does this help?

https://www.shponline.co.uk/legislation-and-guidan...

[Riley Blue]

I'll try again (previous post vanished) - there may be something useful here:

https://www.hse.gov.uk/coronavirus/riddor/index.ht...

[Sebring440]

bmwmike said:

Do i need a legal lawyer type person and if so, how to find someone?

What do you need a lawyer for, exactly?

Is the "employer" in question your employer?

[bmwmike]

Riley Blue said:

I'll try again (previous post vanished) - there may be something useful here:

https://www.hse.gov.uk/coronavirus/riddor/index.ht...

Thank you

[bmwmike]

Countdown said:

I would have thought it was covered under the HASAW Act. Does this help?

https://www.shponline.co.uk/legislation-and-guidan...

Thank you