Wilson v de Keyser (EAT Judgement 20/04/2001)

The EAT in England has given its first ruling on the Human Rights Act. In Wilson v de Keyser, an issue arose as to the cause of Ms Wilson's stress. Her employer's legal representative sent a letter of instruction to a doctor asking him to prepare a report. That letter contained the employer's subjective view of Ms Wilson's condition, referred to her as "easy to disbelieve" and included references to her personal life, such as the death of her brother and an alleged adulterous affair.

The Employment Tribunal struck out the employer's notice of appearance on the grounds that the sending of the letter amounted to scandalous conduct on the part of the employer. On appeal, the EAT found that the Tribunal had not exercised its discretion to strike out properly, and in doing so had to analyse whether Ms Wilson's right to privacy under Article 8 of the European Convention on Human Rights had been breached.

The EAT gave short shrift to Ms Wilson's arguments. First, the letter was neither written nor received by a public authority. Secondly, the information contained in the letter was not confidential (as, for example, medical records would be). Thirdly, the recipient doctor would be bound, in any event by professional duties of confidence.

This was a difficult case. But it does touch upon the important issue of disclosure of medical records for the purpose of employers obtaining expert medical reports in personal injury, employment and discrimination cases.

Whilst acknowledging that a claimant's right to privacy may have to be balanced against an employer's ability to conduct its defence, there is authority from the European Court of Human Rights to suggest that the employer may not be entitled to disclosure if the claimant discloses her own expert's report first and that report contains an adequate synopsis of the relevant information extracted from the medical records.