Airline company - cabin crew members' past 12 months medical records requested to assess fitness for flying duties - refusal of consent might subject the staff to disciplinary action - assessment of fitness would then be based on current information - DPP1(1), DPP1(2)(b)
The Complaint
An international airline ("the airline") implemented a policy requiring cabin crew members who took long or frequent sick leave to consent to the release of his / her medical records for the past 12 months to the airline. The airline explained that, without the past medical records, it would not be able to assess whether the member is fit to return to flying duties. According to the documents issued by the airline relating to the policy, members who refused to cooperate and participate in the arrangement might be subject to disciplinary action, and in the absence of the crew’s consent, the airline would assess whether the members were fit to return to flying duties based on the information currently available ("the Assessment"). The Privacy Commissioner received complaints from the cabin crew members.
Findings by Privacy Commissioner
Upon investigation, the Privacy Commissioner found that collection of the members’ past medical records under the circumstances was necessary under DPP1(1) as being collected for the lawful purpose directly to the functions and activities of the airline. However, the means of collection with a threat that members who refused to give their consent could be subject to disciplinary proceedings was unfair, and the Privacy Commissioner found that the airline had contravened DPP1(2)(b). The airline appealed.
The appeal
The Board decided that although the airline's collection of the medical records had complied with DPP1(1), it did not necessarily follow that DPP1(2) had been complied with. The manner of collection was still subject to DPP1(2).
The airline argued that, without the members' consent and hence without their past medical records, it would not be able to conduct the Assessment. The Board rejected the argument because the airline's documents clearly stated that the Assessment would be conducted on the information currently available even if the members failed or refused to give their consent.
The airline also argued that its request for consent to the release of their past medical records was lawful and reasonable request which the cabin crew staff must obey. The Board ruled that the airline's request amounted to an interference with these staff's rights to privacy under the International Covenant on Civil and Political Rights. unless there was special justification for the airline to make the request, its staff were not obliged to comply with the request. The Board found no such special justification and rejected the airline's argument.
AAB's decision
AAB dismissed the appeal lodged by the employer against the Privacy Commissioner's decision to issue an enforcement notice. Please click here for the full decision given by AAB. For purpose of publication in this website, the names of the complainants mentioned in the decision have been edited out.
The decisions of AAB and the Commissioner have been quashed by the Court of First Instance in the High Court on 28 August 2008 in Action Number HCAL 50/2008. Judgment can be found in the Judiciary's website (http://www.judiciary.gov.hk).
(uploaded on web in August 2008)