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Cathay Wins Appeal On Crew Medical Data

Posted in Cabin Crew News, Cathay PacificNo comments

Cathay Pacific Airways yesterday won a High Court battle over its policy of requiring cabin crew to release personal medical histories or face disciplinary action.

High Court judges Michael Hartmann and Michael Lunn overturned a decision against the airline by the privacy commissioner, and remitted the case to the commissioner for fresh consideration.

Privacy Commissioner for Personal Data Roderick Woo Bun said he was disappointed with the judgment, insisting the commission had come up with a right decision.

The privacy commissioner had earlier found Cathay acted “unfairly” by asking staff with high records of absence to supply evidence of their medical condition and ordered the company to halt the practice.

However, Woo said he is unsure if he will challenge yesterday’s ruling.

The judges said both the commissioner and the Administrative Appeals Board had based their findings on an “incorrect construction” of the true meaning and intent of the Personal Data (Privacy) Ordinance, which says personal data may be collected by lawful and fair means.

The judges said the commissioner must have taken into account that Cathay has a duty in law to monitor the health of its cabin crew and that the collection of medical data sprung directly from that duty and the data sought was not excessive.

“More than that, he [the commissioner] would also have taken into account that the means employed were lawful.

“How then was it, in the light of such circumstances, that
the commissioner came to the
conclusion that the means of collection were unfair?”

The judges also cited an example of workers in a nuclear power station who may be asked to attend regular medical checks and to disclose the results to ensure they are not contaminated by radiation to protect both the interest of the employee and the public.

Equally, the airline is under an obligation to ensure all cabin crew are medically fit when on duty.

“In our view, in circumstances when disclosure of personal data is properly rendered mandatory, it is necessary to advise the data subject of the adverse consequence of failing to disclose, that advice does not thereby constitute a threat or the exertion of undue influence.

“In this regard, it is to be remembered that Cathay’s disciplinary procedures are not only for the protection of Cathay’s interests but ensure also that a member of the cabin crew staff is not in any way prejudiced in his or her employment without a full and fair investigation.”

In a press conference arranged soon after the judgment was handed down, Woo said he had received legal advice to appeal against the ruling.

However, the commissioner said he needs to consider various factors before he decides whether to appeal, including the strength of the legal ground to appeal, whether it is in the public interest and a proper use of public money and also the resources of the commission.

Cathay Pacific welcomed the ruling, saying it has confirmed the need for the airline to seek medical information.

Cathay Pacific Airways Flight Attendants’ Union chairwoman Becky Kwan Siu-wah said she found the judgment “shocking” and she will ask the privacy commissioner to take the case to a higher court.

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