Employment Lawyers Can Answer Your Employment Law Questions
Hi Ben and thank you. On the ICO website it states that I don't have a right to ask the manager who wrote the 'new' reference for a copy, or more so they don't have to show me it. However it states I do have a right to see it from my present employer as it is information held about me and if it is marked confidential this does not apply. I got the job based on satisfactory references, it seems strange why they would request another one now and without my consent. The manager who gave the reference was not wrote down on my application form and no longer works for my previous employer.
I'm Della by the way :-)
I've just spoken to ICO and under sect. 7 of the data protection act the author of the reference is exempt from providing it, who ever receives the reference (my current employer) has an obligation to provide me with a copy within 40 days.
My question really is did my employer have the right to request this reference from someone I did not consent to or give the name of, after I've been employed there 8 months under satisfactory references? The person they got the reference from does not work for my previous employer anymore. I feel that maybe they have sought this reference to put me in a 'bad light' due to my legitimate sickness leave.
Hello Ben, it's been 2 hours since your message, just wondered if you're returning?
Hello, I am here, thanks for your patience. Just getting my response ready for you
Thank You :-)
The provision of a reference will generally involve the processing of personal data and so be subject to the Data Protection Act 1998 and the Information Commissioner's Employment Practices Code.
When it comes to disclosure of references, they are often given in confidence. The ICO suggests that where it is unclear whether information contained in a reference is either known to the individual or confidential, the employer should contact the referee and enquire as to whether they object to the reference being provided to the employee. Even if a referee says that they do not want their comments disclosed an employer may be obliged to provide the reference if it is reasonable in all the circumstances to comply with the employee's request without the referee's consent. The employer must weigh the referee's interest in having their comments treated confidentially against the individual's interest in seeing what has been said about them.
If it is not reasonable in all of the circumstances to provide the information without the referee's consent, the employer should consider whether they can respond helpfully anyway (for example, by providing a summary of the content of the reference).
The DPA 1998 does not permit access to a reference provided by a current employer because of a specific exemption under paragraph 1 of Schedule 7 of the DPA 1998. Employees can apply to the receiving organisation for a copy of that reference, but the receiving organisation is entitled to take steps to protect the identity of any individuals referred to in the reference, including the author of the reference, for example by redacting their names.
If they refuse to comply you cannot force them to disclose the reference and you may then consider seeking court action, for example for compensation for losses resulting from their breach. But you have to show that there was a direct link between the employer’s failure to disclose the reference when they should have and the losses you are claiming to have suffered.
Where you say the DPA 1998 does not permit access to a reference provided by a 'current' employer - this reference was provided by a previous employer to my current employer. My current employer has informed me who wrote the reference, but it is still unclear to me why my current employer has asked for this reference from someone whom i did not give my consent, when I have been employed for 8months.
the current employer can seek clarification n a previous reference or even get a new reference if they wanted to - they are not prevented from doing so.
Some other relevant information is under Part two of the Employment Practices Code, which makes a number of recommendations for employers providing references including:
Under the DPA 1998 employers will be liable for the contents of a corporate reference but not for one given by an individual in their personal capacity.
So am I right in thinking that the manager of previous employment who wrote this reference, provided a confidential reference about me without consent? as i didn't ever consent to her writing one..
My current employer sent me this - I am unable to send to you the reference from Swindon that you have requested as I am not the author of this document and I do not have permission to share this. I am however happy for you to view the document at the meeting next week as I did intend to share its content with you. To obtain a copy, I would advise that your request is made to (Manager of previous employment) -
there is an argument about consent but that is in the Code, which is just guidance - in effect an employer is still able to provide a reference as long as it is factually correct. The current employer appears not to want to send you a copy, i.e. to distribute it, but they have allowed you to see it for yourself in person and that may be the best outcome here, you will still know the details
sorry to waffle on, but this reference is being used against me in a formal meeting, as it is said that there are discrepancies between the reference and what I said in interview 8 months ago..
ICO informed me I have a legal right under sect 7 of the dpa 1998 to see it before the meeting in order to prepare a response if i need to challenge it
No because the current employer is exempt from this under Schedule 7 of the DPA so they do not have to give access to a confidential reference
SO if it was made in confidence then the current employer does not have to provide it as the DPA specifically states so
Oh dear.. they told me the 'author' of the reference is exempt from providing it (under sect 7), but whom ever received it has an obligation to provide a copy to me.
I will call them back up if this is incorrect
the issue as mentioned is that you cannot force either employer to disclose this reference, only a court can do so and before the meeting that will not happen. What makes it worse is that you are not protected against unfair dismissal s you so not have 2 years' service, so the employer can dismiss you or treat you unfairly (to a degree) because you will not be able to challenge it, even if it was based on the reference and even if they did not follow procedure as expected
I've got so many people telling me different things, the Union are saying it's discrimination if they use the reference to not extend my probation based on my health, as this falls within the scope of the Equality Act (2010).
ACAS are saying similar
and ICO told me to email them saying I'm requesting this reference under sect.7 of the DPA....
you will only be protected under the Equality Act if you actually have a disability - something that only lasted a couple of months is not a disability, it needs to be for more than a year, so if it is not a disability then even if it is a health condition it would not be discrimination
I've suffered with endometriosis for 6 years and depression since i was 9 years old due to PTSD.. does that count?
it may indeed, you need to satisfy the legal criteria first though:
just fetching it...
In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.
The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.
I will break this definition down:
My conditions unfortunately for me cover all those points..
but if the reference is not linked to the conditions and is for an unrelated reason and the dismissal is based on that then it would not be discriminaiton
So I suggest you attend the meeting, look at the reference and ask for an adjournment to be able to prepare for any action the employer wants to take
Ok, I'm still going to attempt to see it before the meeting. Even if that means meeting informally
you have nothing to lose by at least tryng
This is all so confusing to me, but thanks anyway
you have picked a rather complex area (unintentionally of course)
you are welcome
you too, thanks