A common question that comes up is how the Data Protection Act 1998 applies to references. The Information Commissioner has issued a good practice note called Subject Access and Employment References, which clarifies the position.
As explained previously, people have a right to copies of information held about them that is covered by the act. There are different rules for references that have been given by an employer and those that have been received by one.
If an employer has written a confidential reference about a worker that relates to training, employment or providing a service, the employer will not have to provide it because of an exemption in the act. However, the guidance suggests that it will be reasonable to provide a copy if the reference is wholly or largely factual in nature, or if the person is aware of an appraisal of their work or ability.
What happens if the employer has received a reference from another person or organisation? In this situation the reference will be subject to the act. Although people have a right to copies of information held about them, they will not necessarily have access to information about other people, including their opinions, that has been provided in confidence.
If an employer receives a reference marked "in confidence" he or she needs to consider whether the information is actually confidential. Where this is not clear, the referee should be contacted and asked whether they object to the reference being provided and, if so, why. The reference will need to be provided if it is reasonable in all the circumstances to comply with the person's request, even if a referee does not want their comments to be released. In considering whether disclosure is reasonable, a number of factors should be taken into account, including any express assurance of confidentiality given to the referee, the potential effect of the reference on the person, any relevant reasons the referee gives for withholding consent and the fact that the reference must be truthful and accurate.
The guidance states that in most circumstances employers should provide the information in a reference to the person it is about, if they ask for it. However, it does state that there may be circumstances where it would be inappropriate for the reference to be released, such as where there is a realistic threat of violence or intimidation by the person towards the referee.
- Emma Burrows is a partner and head of the employment group at Trowers & Hamlins solicitors.