Staff have rights to see job references, says privacy chief

Out-Law News | 09 Jan 2006 | 9:43 pm | 1 min. read

The Information Commissioner has published guidance for employers on how the Data Protection Act applies to employee references, highlighting the fact that in most cases the Act entitles individuals to see personal information held about them.

References are often a tricky issue for employers, because if a reference contains something that an employee regards as unfair, it could lead to conflict and even litigation. As a result, references are frequently given in confidence or become limited to facts without opinions.

The question of whether employees are entitled to see references depends largely on whether the reference has been written by the employer, or received from someone else.

An exemption in the Data Protection Act applies if a confidential reference has been written by the employer. In this case the employer does not need to pass on a copy, although it would probably be reasonable to do so, suggests the guidance, particularly if the reference is largely factual.

However, if you hold a confidential reference that you received from someone else and you hold it in a way that means it is covered by the Act, you must consider a request for a copy under the normal rules of access.

An important point in this statement is easily overlooked: you may hold a reference in a way that is not covered by the Act and therefore you can lawfully refuse an employee's request for a copy.

Held electronically, the Act generally applies and the subject of the reference can demand a copy unless it also provides information about other people. (So the opinions of other people, given in confidence, may be excluded.)

Held manually, the Act only applies if it is held as part of a "highly structured" manual filing system. Anything less and the reference remains a secret. Accordingly, employers may be persuaded to send references as letters, not as emails, to minimise the likelihood of employees finding out what was said about them.

“The Information Commissioner’s Office has received a number of enquiries from employers and employees in relation to references,” said Assistant Commissioner Phil Jones. “I hope this guide will provide answers to some of these questions and clarify when employment references should be released in order to comply with the Data Protection Act.”