Data Protection And References
A question that is often asked by employers when an employee or prospective employee requests a copy of their reference is ‘Do I have to provide them with a copy?’
In short there are two scenarios that need to be considered as your obligations will be different under each.
1. References you write about employees
If an employee or prospective employee asks for a copy of a confidential reference that you have written about them relating to training, employment or providing a service you do not have to provide it. However, you can provide it if you so wish, particularly if the information is factual or the employee or potential employee is aware of the nature of the reference in any event.
2. References you receive written by someone else
If you have received a reference from someone else regarding an individual that you are thinking of employing you may have to provide it. An employee or prospective employee is entitled to have access to information that is about them but you must remember the right of privacy of any third party named in the reference including the author.
If the employee or prospective employee is already aware of the information, such a dates of employment then you should provide it. You can ask the referee if they consent to you providing the reference. If they do not consent you may still have to provide the reference if it is reasonable in all the circumstances to do so. The Information Commissioners Office (ICO) recommends that you ‘weigh up the referees interests in having their comments treated confidentiality against the individuals interest in seeing what has been said about them’.
Further Information
The ICO has updated its Good Practice Guide to ‘Subject Access and Employment References’. This is a very simple and informative 2 page guide and can be found at www.ico.gov.uk.
