Even if a referee asks a charity not to release his or her comments to an individual who has requested access to a reference written about them, the charity will need to provide the reference if it could be seen as reasonable in all the circumstances to comply with the request.
The Information Commissioner's good practice note says that, when considering whether it is reasonable to comply with a request, an employer should consider a variety of different factors.
These include: any express assurances of confidentiality given to the referee; any relevant reasons the referee gives for withholding consent; the potential or actual effect of the reference on the individual; the fact that the reference must be truthful and accurate and that without access to it the individual is not in a position to challenge its accuracy; the fact that good employment practice suggests that an employee should already have been advised on any weaknesses; and any risk to the referee.
The Information Commissioner's note states that the information in a reference, or at least a substantial part of it, should in most circumstances be provided to the person it is about if they ask for it. Even if the referee refuses consent, this will not necessarily justify withholding the information, particularly where this has had a significant impact on the individual, such as preventing them from taking up a provisional job offer.
However, there may be circumstances, such as where there is a realistic threat of violence or intimidation by the individual towards the referee, where it is not appropriate for the reference to be released.
Charities should also consider whether it is possible to conceal the identity of the referee, although often an individual will have a good idea who has written the reference. If it is not reasonable in all of the circumstances to provide the information without the referee's consent, the good practice note suggests that the employer should consider whether it can respond helpfully anyway by, for example, "providing a summary of the content of the reference".
- Emma Burrows is a partner and head of the employment group at Trowers & Hamlins solicitors