Can I share my employee’s health information in a mental health emergency?

Perhaps one of the most challenging situations an employer can be faced with is an employee in a mental health emergency situation. So employers may be pleased to hear that the ICO has recently issued guidance to help employers have a better understanding when they are allowed to share their employees’ health data in these scenarios. The ICO defines a “mental health emergency” as when the employer believes that the employee is at risk of serious harm to themselves, or others, because of their mental health. Note that it is the employer’s judgement which is relevant here, which is significant as it is not uncommon for those in mental health crisis to also be in a state of denial and some seek to persuade others that they are in fact well and do not need help.

When does the Guidance say that employers may share mental health data?

The Guidance confirms that not only may employers share mental health data with emergency services or health professionals in these situations, but that they should do so – in other words they are expected to, with the aim of preventing the risk of serious harm to the employee or others. This is consistent with the employer’s duty of care to their staff.

In addition, employers may consider if it would help the employee to share necessary and proportionate information with their next of kin. This is a more nuanced issue. Another data protection principle is ensuring that all the data an employer holds is up to date. Sharing an employee’s mental health data with next of kin is a very good example of why having up-to-date data is so important, as sharing such data with someone who should no longer be listed as next of kin is highly inappropriate and in some circumstances, such as domestic abuse, could be dangerous. It may be that information shared with next of kin should be much more limited, such as informing them that the employee has been taken to hospital, without giving details of exactly why that was necessary.

What should the employer have done in advance of a mental health emergency situation?

As with all data sharing, the employer should have advised the employees in advance, via the staff privacy notice, that their data may be shared in this way.

The employer should also have kept a record of the lawful basis and special category condition on which they would rely in the event that they needed to share health data in such a scenario.

Employers are advised to carry out a data protection impact assessment (DIPA) (however, the Guidance notes that failure to have conducted a DIPA should not prevent the employer sharing information in a mental health emergency).

What other steps does the Guidance recommend that employers take?

In the Guidance, the ICO states that employers should:

1. Have a policy on sharing personal information in a mental health emergency;
2. Make the policy available to staff;
3. Train staff on how to implement the policy – such as who will be responsible for making the decision as to whether there is an emergency situation, what information will be disclosed and to whom;
4. Consider offering staff specific mental health emergency contacts.

Employment law considerations

Employers clearly need to ensure that they do not unduly concern staff by suggesting that working for them is likely to be so stressful as to lead to mental health emergencies, so some employers may worry about asking all staff if they wish to provide mental health emergency contact details. On the other hand, employers need to ensure that they do not discriminate against some groups or fail to provide appropriate care and support for all staff. Ideally, an employer will be providing training to staff regarding good mental health which recognises that life events outside of work alone or in combination with work pressures can create challenges for anyone.

Employers should encourage all staff to plan for how they would like their employer to support them if they were to become seriously mentally unwell, should the need arise. Ensuring that this information is presented in an open and supportive way will also hopefully encourage staff to seek help from their line manager or HR at an earlier stage, which may in itself avoid a mental health emergency situation arising, particularly if some of the causes of the extreme mental ill health are work-related. This again is consistent with the employer’s duty to provide a safe working environment and their duty of care to staff.

If you have questions about the use and storage of an employee’s personal data, please contact Rachel Tozer.