The Data Protection Act 1998 applies differently to references that have been given by an employer and those that have been received by an employer. The Information Commissioner has produced a good practice note called Subject Access and Employment References, which clarifies how the act applies.
If someone asks for a copy of a confidential reference that a charity has written about them and given to someone else, the charity does not have to provide it under the act. However, the good practice note says: "It would seem to be reasonable to provide a copy if a reference is wholly or largely factual in nature, or if the individual is aware of an appraisal of their work or ability."
References that a charity receives from another person or organisation are treated differently. These are covered by the act, and any request for a copy should be considered under the normal rules of access.
An individual can have access to information that is about them, but they may not necessarily have access to information about other people, including their opinions, which have been provided in confidence.
If a charity receives a reference marked "in confidence", it needs to consider whether the information is actually confidential. Information already known to the individual cannot sensibly be withheld. However, where it is not clear whether information is known to the individual, the employer should contact the referee and ask whether they object to this being provided and why.
Even if a referee states that they do not want their comments released, the charity needs to provide the reference if it is reasonable in all the circumstances to comply with the request without the referee's consent.
The referee's interest in having their comments treated confidentially should be weighed against the individual's interest in seeing what has been said about them.
Factors for charities to take into account when deciding whether to release a reference will be discussed in my next article.
Emma Burrows is a partner and head of the employment group at Trowers & Hamlins solicitors.