The disclosure of information on medical certificates and the impact on the right to privacy

Abstract

Chapter 2 of the Constitution contains the Bill of Rights, which ‘enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.’1 By rights being afforded to the employee in the workplace, such rights need to be protected (legislation being implemented by legislature is subjugated by the Bill of Rights).2 Labour legislation being implemented in order to protect the rights afforded to the employees,therefore creating fair labour practice in terms of section 23 of the Constitution. Such legislation needs to take in regards various rights of an employee, such as the right to privacy3 of an employee. This resulted in creating domestic legislation in order to protect employees’ rights to privacy. A detail discusses of how various domestic legislation were implemented to protect the right is discussed in Chapter 2. In addition to the implementation of domestic legislation giving effect to the right to fair labour practices, the Constitution requires that international law be considered when individual and a further international obligations with regards to international standards). Section 39(1)(b) provides that ‘when interpreting the Bill of Rights, a court, tribunal or forum must consider international law’. This means that standards set by the International Labour Organisation and Conventions must be considered when interpreting the right to fair labour practice.4 A detailed discussion is dealt with in Chapter 2. The primary research question of this thesis is ‘is an employee’s right to privacy infringed by requiring a medical condition to be disclosed on a sick note for purposes of statutory sick leave?’ In answering this question, a number of ancillary questions must be answered, including whether doctor and patient confidentiality is breached in disclosing such information on a sick note; to what extent medical information can be disclosed in the medical information; whether there is a potential for misuse of information disclosed on the medical certificate against the employee; whether such disclosure of information could lead to unfair labour practice where the employee can be unfairly discriminated against based on such disclosure and how is privacy is being protected and processed in terms of legislation domestically and foreign legislation.