31st March 2020

Covid-19: – How employers can avoid discrimination and GDPR issues

The coronavirus has had a far bigger impact on our workplaces than anyone could ever have imagined and with the prospect of normal life not returning for up to six months (the Government has recently warned that strict social distancing measures may continue into the summer), there will no doubt be a few more minefields for businesses to navigate (in case you needed reminded, click here to read our series of Guides for Employers). One of these minefields might prove to be the influx of information workers are providing to their employers about their health and what employers then do with that information.

What health information are workers providing?

Employers are being provided with coronavirus related health information in a number of different scenarios including:

  • If someone has symptoms of coronavirus, or lives with someone who has symptoms, he or she will need to self-isolate for either 7 day, 14 days or longer and will ‘call in sick’ to their employer under the normal absence reporting procedures. It is possible that a worker will also provide their employer with either a Fit Note and Isolation Note.
  • Shielding is required for anyone at very high risk of severe illness from coronavirus because of an underlying health condition, for example, anyone with cancer undergoing active chemotherapy, with a severe respiratory condition and on immunosuppression therapies sufficient to significantly increase risk of infection. They must to stay at home at all times for a period of at least 12 weeks. Whilst they won’t have ‘called in sick’, they will have informed their employer they won’t be at work, and why, because they are shielding. They may have provided their employer with a text message or letter from their GP.
  • Those who are at increased risk from coronavirus (over 70s, pregnant and a condition increasing risk) have been told to stay at home for 12 weeks and only leave the house for very limited purposes which can include travelling for work purposes, but only where working from home is not possible. At the very least, they will have spoken with their employer about working from home, why and what options are available if homeworking is not possible.
  • Where someone does not fall into any of the above categories but lives with someone who is either shielding or at increased risk and has informed their employer of this (perhaps even sharing a text message or letter from a GP) and discussed the possibility of homeworking, holidays or unpaid leave in order to stay at home in order to reduce the risk of spreading the coronavirus.

The employer will have made a record and will be using the information to make certain decisions about working arrangements, absence from work and pay.

What does an employer need to remember when it is given information about workers’ health?

Whilst it’s nothing new for employers to be given information about their workers’ (or their family members’) health, they are currently being given this information in record amounts and it is highly that in every workplace there is at least one worker with a hidden disability (click here to read our article on ‘The hidden challenges of invisible disabilities: 4 ways to avoid discrimination in the workplace’). It’s therefore worth reminding ourselves of the following:

The General Data Protection Regulations 2016 (GDPR) GDPR defines information, or data, concerning health as special category data and it requires more protection because it is sensitive. An employer must always ensure that it is processing this data in a lawful, fair and transparent way as well as meeting one of the specific conditions set out in the GDPR.

The Equality Act 2010 (Equality Act) The Equality Act defines a disability as a physical or mental condition which has a substantial and long-term impact on the ability to do normal day to day activities, and a worker must not be discriminated against because: they have a disability; someone thinks they have a disability; or they are connected to someone with a disability.

What should employers do with this information about their workers’ health now that they have it?

Workers are not required to disclose information about their health either before or any time during their employment but as soon as their employer has this information they have certain obligations including the following:

  • To process health information in accordance with GDPR. Explicit consent is not required where, for example, it is necessary to enable the employer to meet its legal obligations (e.g. to comply with statutory sick pay requirements), but an employer should identify and record which sensitive data rule(s) it is relying upon to process health information. Health information must also be kept private and confidential and should only be shared with employees’ managers in so far as it is necessary for them to carry out their role. A manager should only be concerned with the impact of a medical condition on worker’s fitness for work (the worker has symptoms of coronavirus meaning he is unable to work for 7 days) rather than the medical details (the worker’s symptoms are a fever, a dry cough and aches and pains).
  • Not to apply discriminatory selection criteria in the selection of workers for furlough leave under The Coronavirus Job Retention Scheme (Job Retention Scheme). The Job Retention Scheme provides a mechanism that allows employers to retain workers on 80% (up to £2500) of their normal wage who would otherwise be made redundant. The furloughed worker does not work for a minimum period of 3 weeks. It is not expected to be discriminatory to offer it to vulnerable workers on the basis that offering it in line with Government guidance is likely to be an acceptable means of achieving a legitimate aim namely, protecting the health and safety of the worker. However, care should be taken not to select a worker for furlough leave because they have, or think they have, a disability and assume they will need time off sick at some point during the coronavirus crisis. Equally, the employer should not select a worker furlough leave because he or she has a member of their household with a disability.
  • A duty to make reasonable adjustments. Under the Equality Act, employers have a responsibility to make sure that disabled people can access jobs and work as easily as non-disabled people. What is reasonable depends on a number of factors including the resources available to the employer. For example, it may be a reasonable adjustment for an employer to pay a vulnerable worker required to stay at home for 12 weeks company sick pay scheme rather than statutory sick pay. And of course, normal life will eventually resume and workers will return to work. Employers will remain under a duty to make reasonable adjustments for any worker with a disability which the employer was made aware due to the coronavirus social distancing measures.

What are the top take away tips for employers?

  1. Revisit your GDPR policies and procedures and make sure they are fit for purpose and managers understand their obligations.
  2. Review how absence is being recorded in your workplace, who is recorded it and who has access to the information provided by workers.
  3. Only keep health information for as long as is necessary.
  4. Do not select workers for furlough leave (or redundancy) because a worker has a disability or has, or you think they will, take time off work in relation to their disability. A better approach would be to exclude disability and disability-related absence from absences which is used to score employees.
  5. If a worker discloses that they are disabled, discuss how their disability effects them to understand whether there are any reasonable adjustments that should be made in the workplace both to support them and alleviate any substantial disadvantage.

If in doubt, you should take advise from your own solicitor or a member of the Blackadders’ Employment Team.

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
Employment Law
Blackadders LLP




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