If an injured employee requests details of their accident report what are their entitlements and what are the restrictions that can be placed on the release; most importantly what is the law and reasoning behind all those entitlements and restrictions?
Clare Cashin of Philip Lee considers the scenario below.
Employers maintain reports of accidents which occur at their work place for many reasons; some reasons which spring to mind are the orderly administration of a business, compliance with health and safety legislation, HR procedures, compliance with insurers’ guidelines or to simply have records to hand should future litigation arise. The Safety Health and Welfare at Work Act 2005 (the 2005 Act) requires accidents and dangerous occurrences to be reported to the Health and Safety Authority (HSA) but beyond that standardised IR1 online form, employers do tend to maintain separate accident reports.
If a question arose as to what the dominant purpose as among all those reasons for maintaining records was, what would be the answer?
This is a consideration which businesses regularly have to face from a legal stand point, in order to decide if privilege applies.
Data Protection Acts 1988 and 2003
The Data Protection Acts 1988 and 2003 define personal data as data relating to a living individual who is or can be identified (either from the data, or from the data in conjunction with other information that is in or is likely to come into the possession of a data controller).
Bearing this in mind Section 4 provides a right of access to personal data. It states that an individual who makes a request in writing shall be informed by the data controller whether the data being processed includes personal data (as defined above) and if it does, be supplied with a description of the personal data (together with the categories, the purpose and the recipients) and the information constituting the personal data (together with other aspects such as the source of the data and the logic involved in the processing of same).1
Section 5 of the Act facilitates a restriction on the right of access. The entitlement set out in Section 4 above does not apply to personal data kept for the purposes of preventing, detecting or investigating offences for example. Other restrictions set out in Section 5 which one could foresee being applied to accident reports (and restricting their release) are information kept for the purposes of discharging a function conferred under an enactment, information consisting of an estimate of damages to be paid or information in respect of which a claim for privilege could be maintained in proceedings in a court.
An accident report (or at least some sections of it) is likely to constitute personal data i.e. a living individual is identifiable from it. Accordingly an individual would typically be entitled to an accident report relating to their own incident. This has implications and consequences for subsequent litigation so it is important for employers (and employees) to be alert to the entitlements and restrictions pertaining to production.
Section 5 Restrictions
Accident reports are required for production pursuant to Section 4, unless they fall within the exemption of Section 5. Some of the restrictions in Section 5 which would commonly apply to accident reports deserve further examination.
One restriction in Section 5 is information kept for the purposes of discharging a function conferred under an enactment. Section 8(2)(k) of the 2005 Act requires an employer to report accidents and dangerous occurrences to the HSA. To that extent form IR1, the prescribed form could fall within this restriction so it is the broader separate reports developed by employees beyond the statutory report form which we consider below.
However, the most popular ground for declining release is because an employer maintains that it is information in respect of which a claim for privilege could be maintained.
Privilege – General Principles
A privileged document is one which is immune from production. The reason why the law recognises privilege and allows documents this protection is because it is seen to assist the administration of justice. The courts accept that one should be able to seek and receive legal advice and prepare for litigation in confidence and so they allow certain communications to be protected. Privileged documents fall outside the usual requirements of disclosure.
There are various of types of privilege (such as executive privilege, journalistic privilege, without prejudice privilege), but for the purposes of considering accident reports, legal advice privilege and litigation privilege which are the two likely to come into play.
Legal Advice Privilege
Legal advice privilege attaches to documents which contain actual legal advice or a request for legal advice. This privilege does not extend to mere legal assistance such as administrative tasks carried out by a solicitor.
Documents attract litigation privilege if they are created with a dominant purpose of actual or contemplated litigation. The dominant purpose test is important. If a document is created for more than one purpose then unless the dominant purpose is litigation then privilege will not attach. One can see how this could easily happen in relation to an accident report. It needs to be very clear that the report is being created for the purposes of contemplated litigation if privilege is to attach. Where the report is being created for numerous purposes (eg. periodic insurance reporting) then one can foresee an argument that the contemplated litigation was not the dominant purpose; one is commonly challenged to decide the precise date at which litigation was in fact contemplated. These are just samples of the myriad of challenges one faces in attempting to maintain privilege. Knowing the potential challenges can assist in planning to avoid problems.
While one can take steps (by understanding the permutations above) to attempt to assert privilege, it will ultimately be a subjective test based on their context and what was happening precisely at the time the document was created including the mindset of the person creating the document.
Waiver of Privilege
Privilege can be lost where a party has waived that privilege either by choice or inadvertently. If the person who “holds” the privilege releases that document, by exhibiting it for example, one waives the privilege which attaches to it. Accordingly if privilege attaches it needs to be guarded carefully.
The context of the document dictates whether privilege attaches. Sometimes people think that all communications between the client and solicitor are privileged but this is not so; whether a document is privileged depends on its context.
Attaching headings such as “privileged” or “privileged/created for legal purposes” are not decisive. It is the actual content of the document and the context which decides whether it is privileged or not (as opposed to any title or phrase which accompanies it).
That said, the heading “privilege” can assist, but only to the extent that it assists the consideration of context. The attachment of a title of “privileged” can be helpful and is indeed advisable where one intends to claim privilege. However, it is equally important to understand that it is not decisive but privilege will always depend on the content and contexts.
Accident reports are likely to contain personal data which an injured employee is generally entitled to access. This is subject to limited exceptions. If an employer wishes to maintain privilege over that document, the boundaries of privilege need to be understood. While the privilege which attaches to a document must always be considered on an individual basis (testing the context and content of each individual document) understanding those boundaries can help employers to plan systems and help avoid conflict when it comes to release.
- Clare Cashin, Solicitor
- Committee Member, HSLAI
- January 2016
1 There is a limited exception to the duty of a data controller to disclose to an individual who makes a data access request where disclosure is likely to cause serious harm to the physical or mental health or emotional condition of that person. In that case, the data controller must assess whether an appropriate healthcare professional should consider whether to permit access to the information to the person.