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As an employer, you'll be used to requests to provide employment references, either from ex-employees or from the HR department of other businesses. You'll be well aware that whatever you write is bound by the Data Protection Act (DPA) 1988. You'll also be used to receiving references relating to new or prospective employees and understand that the way you keep such information is covered by the DPA. However, you may not be aware that employees have certain rights under the DPA to access references which, in some circumstances, may seem at odds with normal practice. Let's look first at reference requests from someone who is no longer employed by you. That person has the right to request any personal data which you may hold, so it's important that all personal data is accurate. However, the DPA has an exemption which states that you do not have to give the ex-employee a reference if it concerns their education, training or employment when such information was originally given in confidence. Even so, you may decide to provide a factual copy of the reference and that is acceptable. This exemption means that there is no obligation of the part of an ex-employee to give a new employer a copy of the original reference. Conversely, it also means that you cannot ask a prospective employee to give you a copy of a reference about their education, training or employment which had originally been written in confidence. Let's now consider what happens when you have a new employee. You will have received references about that person which will be filed according to the rules and regulations of the DPA. Your new employee has the right to see any references about them which contain information which they already know, such as the dates of their employment and their absence record. But what happens when you are not certain whether information in a reference is already known to your new employee. For example, this could relate to their performance which may or may not have been discussed at an appraisal. In such cases where there is some doubt, you should contact the ex-employer and ask if they object to the information being disclosed. If they do object, then it is important to find out the reasons for the objection. Despite the objection, in most cases you will be expected to release the reference unless there is a strong reason against this. For example, removing the name and address of the person who wrote the original reference could be possible especially if there was a realistic threat of violence towards that person. In such circumstances you could withhold the reference altogether. Such decisions come down to what is 'reasonable' in the given circumstances. You have to weigh up the ex-employer's request for confidentiality with the employee's need to see the information about them. All references must be truthful and accurate, so it is equally important to assess how the employee making the request to see a reference would be affected by the information it contains, especially if they are applying for a new job. There may be occasions when it is not possible to obtain the ex-employer's consent. In such cases, it would be reasonable to provide an overview of the information held in the reference and remove any information relating to other people. Matt Crumble works for PBS UK, a leading HR and payroll outsourcing company. PBS offers HR consultancy and has an online HR document shop selling a wide range of HR policies and model contracts.
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