Is a job applicant entitled to see all references provided by their current or previous employer, even if it was provided in confidence? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
I know under the Data Protection Act an employee can ask to see information held on file about them. However, can a job applicant be allowed to request/see all references provided by current or previous employers? If a job reference is provided in confidence, can this be accessed by the job applicant regardless of whether they are successful in applying for the post?
Legal advice:
Esther Smith, partner, Thomas Eggar
Under the Data Protection Act 1998, an employee has the right to make a subject access request to see all personal data that an employer holds on them. Therefore, if the employee makes the request then the employer needs to show them any references held on file about them.
If the employer has itself provided the reference then this would not be discloseable by that employer. However, if the employee subsequently took up a position with the organisation that had requested the reference, then it would be them that would have the duty to disclose it under the Data Protection Act 1998.
All the more reason to ensure that any references you provide on current or ex-employees are fair and factual.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
* * *
Martin Brewer, partner and employment law specialist, Mills & Reeve
An employee can request to see a reference from the recipient only, and the recipient should comply as required by the Data Protection Act, subject as follows.
The reference will, of course, identify a third party so before disclosing you should get consent from the giver of the referenced to their details being disclosed.
The reference may also mention other people so the same issue applies. If you don’t get consent, you should still consider disclosing the reference either in its full format or by deleting names. In the final analysis, if all else fails you should consider giving the employee a summary or précis of the reference.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.
* * *
