Disclosure of Mental Illness a Breach of Employee Privacy

On December 4, 2014, an Alberta labour arbitrator decided that an employer owed a grievor $5,000 in damages for breach of privacy due to the disclosure of the employee’s presumed mental illness during the formal review of a workplace conflict.

Facts of the case

Edmonton Police Service v Edmonton Police Association details the case of a 30-year detective with the Edmonton Police Service.

In 2011, the police service was considering transferring the grievor from one unit to another. The employer planned to assess the results of a broadly based unit review and then decide on the transfer during the first week of October.

However, tension arose between the grievor and his staff sergeant over the potential transfer. On September 30, the two argued, the sergeant had an outburst, swore at the grievor and suspended him with pay. A quick decision was made to transfer the grievor immediately and involuntarily, before the unit review was completed.

Subsequently, concerns were raised about the grievor’s well-being and emotional state. The employer asked the grievor to have a psychological assessment. He reluctantly agreed. Ultimately, the psychologist reported that, despite the grievor’s emotional reaction to a difficult work situation, and the shock of his removal from his unit, he had adjusted quickly and was “psychologically intact and functional.”

On October 4, while the grievor was suspended and before his psychological assessment, a meeting of his unit’s staff took place. The goal of the meeting was to discuss the unit review, including the decision to reassign the grievor. But that was not all that took place. There was some discussion about the transfer, but there were also references to the grievor’s health and emotional condition. The police superintendent expressed concern for the grievor, suggesting that his colleagues should reach out to him and support him. The attendees were also told he was seeking help from the employee assistance program.

After the meeting, the grievor’s assigned partner sent an email to all of the persons who had been at the meeting assuring them not to worry about the grievor because of the comments made at the meeting.

On behalf of the grievor, the Edmonton Police Association launched a grievance complaining about the involuntary transfer and also the privacy issues that arose out of the unit meeting. The association argued that there were two breaches of the grievor’s privacy rights. First, without any sufficient cause, he was essentially suspended from duty until he submitted to a psychological evaluation. Second, during the October 4 meeting, there were several references made to his alleged state of health and to his participation in the employee assistance program.

Decision

The arbitrator made the following findings.

• The superintendent acted without malice. Her urge to be open and transparent with the work group unduly prevailed over the grievor’s privacy interests. The superintendent initially took a cautious approach to discussing the grievor’s state. However, her obvious concern for the grievor led her to change her message from “it’s an issue I can’t talk about,” to “he’s got a problem that is sufficiently serious that I am very worried about him.” The more these comments were repeated, the more it suggested that the grievor had suffered some serious mental event. She worsened matters by suggesting that others reach out to the grievor and mentioning that he had sought help from the employee assistance program.
• An objective observer hearing all this could easily conclude that the grievor was suffering from a serious mental health issue of sufficient severity that he had to be removed precipitously from the unit and was in need of professional treatment. This conclusion was not justified by the report or the grievor’s health as it proved to be.

The police service freely acknowledged that the way the grievor was transferred did not accord with the service’s own policy. The grievor was not given the notice or explanation to which he was entitled. As a result, he lost the benefit of the consideration that is of necessity involved when reasons must be crafted, and he lost the right to appeal based on any such reasons. Also, the decision to move the grievor was taken precipitously and was an immediate result of an ultimatum from another officer. Over the course of a couple of hours, it was felt to be justified because of assumptions of mental health issues that, with only a few days reflection, would have been found to be unjustified. Therefore, the action was an unreasonable exercise of management’s rights in the circumstances.

In addition, because of recommendations in the report, it was likely that the grievor would have been transferred anyway. This would have accomplished the same end but without the attribution of blame to the grievor, and more particularly on his presumed state of mental distress.

In terms of the privacy concerns, the arbitrator was reluctant to address the delicate issue of when a police service, concerned about the fitness for duty of a police officer, could compel a fitness-for-duty assessment. However, the arbitrator stated that the October 4 meeting did breach the grievor’s right to privacy.

The arbitrator stated:

“Had the Employer described to a work group a physician’s diagnosis of a co-worker, that it had obtained in its role as employer, disclosure would clearly be a breach of the employee’s right to privacy of their personal medical information. To anticipate a diagnosis, based only on personal observations, however genuine the concerns, and to discuss that in public, is just as serious a breach of privacy. Arrangements were underway to get the grievor assessed. Implying anything as to his state of health pending that assessment was inappropriate and unnecessary.”

Consequently, the grievance was allowed in that the griever was awarded $5,000 for compensation for the breach of privacy.

What can we take from this case?

As can be seen from this case, it is unacceptable to share an employee’s medical condition with other employees in the workplace, whether it is suspected, in the process of being confirmed, or confirmed. It is unacceptable to go on and on about concerns related to the worker in the way that this employer did. Simply put, it harms an employee’s reputation and affects all future interactions in the workplace. This is especially true when dealing with an employee who relies on an image of credibility and reliability. It does not matter if the concern is genuine; it is not acceptable to disclose an employee’s medical situation—period.