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Must we show a prospective employee their reference?

A job applicant we wish to interview has asked to be shown the reference provided by their current employee. Must we show it to them? Barristers Michael Salter and Chris Bryden give advice

A job applicant we wish to interview has asked to be shown the reference provided by their current employee. Must we show it to them? Barristers Michael Salter and Chris Bryden give advice

THE SITUATION

The practice is recruiting a new employee. One of the applicants has requested that we show them the reference their current employer has sent us. Do we have to show them it?

THE ADVICE

A previous Legal Lesson discussed the potential liability for an incorrect reference.

Here we are concerned with another consequence of references.

The retention of information, and an employee's access to such information, is governed by the Data Protection Act 1998.

Upon the payment of a fee the applicant can seek and be supplied with data held by an employer, The employer has 40 days to do this.

Confidential references given by the employer are not subject to a legal obligation of disclosure to the employee.

However, if the reference is no more than a factual account of their role and their period of employment it would seem reasonable to disclose such a reference.

However, the 1998 Act allows employees to request access to such information from the recipient of the reference.

In this case the practice wanting to interview this applicant will first have to obtain the consent of the applicant's current employer that information can be disclosed.

Furthermore, every person referred too in the reference must provide their consent if their details are to be disclosed.

If such consent is not forthcoming, then you may have to redact certain parts of the reference to conceal the information.

There is an argument that the opinion of the third party is not subject to disclosure under the 1998 Act as this is not information about the applicant.

A reference may be marked "in confidence". If so then the practice will have to decide whether in fact the reference contains anything that is confidential.

For instance the applicant's dates of employment, role and tasks undertaken and sickness record will be known by the applicant and so should be disclosed.

It is likely that their performance will also be known by the applicant if they went through a performance appraisal during their current employment.

However, if you have any doubt as to what information is known by the applicant and what is not, then you should contact the person who gave the reference.

Even if the practice is told that the provider of the reference does not wish for it to be disclosed, the practice will need to consider whether it is reasonable to disclose it without their consent!

When assessing this, you should consider all the facts of the matter, including the assurance given that the reference is in confidence against the reasons given by the reference provider for refusing to give their consent and any risk to the referee.

If you decide that it is not reasonable in all the circumstances to provide the information without the referee's consent, ask yourself whether there is another way in which such information could be disclosed. For example, could it be disclosed in summary form?

The practice should be aware that the Information Commissioner has produced a Code of Practice dealing with the retention of data in relation to employees and applicants for jobs.

Michael Salter and Chris Bryden are barristers at 2 Gray's Inn Square Chambers: www.2gis.co.uk Michael Salter is also able to accept instructions directly from readrs of Pulse. Please visit www.michaelsalter.net for guidance on how to instruct him. Legal points are provided for discussion only and are given without obligation. For specific legal advice consult your solicitor or contact Michael Salter via his website

Legal lessons: Must we show a prospective employee their reference?

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