Ask a Law Question, Get an Answer ASAP!
Hello, my name is ***** ***** it is my pleasure to assist you with your question today.
There are indeed certain data protection issues if you have been asked to disclose a reference you hold about an employee, which has been provided to you by a third party.
If a reference is expressed to have been given "in confidence", certain rules will apply. The Information Commissioner has published Data Protection Good Practice Note: Subject access and employment references which provides guidance on the application of the DPA 1998 to references and in particular the circumstances in which they can be disclosed to the employees they concern. The Information Commissioner 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.
When considering whether it is reasonable in all the circumstances to comply with a request, the Information Commissioner recommends taking the following factors into account:
So these are the principles that apply to this situation,. There is unfortunately no right or wrong answer as such, it would very much depend on the specific circumstances. Even if you do not provide the reference the employee would be limited in what they can do. They could complain to the ICO but you would not be liable to pay any compensation unless they have suffered losses as a result and this is unlikely because no losses have been incurred from the actual failure by you to disclose the reference.
Thanks. Looking at the factors to be considered....
What would you do?
It's a tough one, that's for certain. If it is not reasonable in all of the circumstances to provide the information without the referee's consent, you should consider whether you can respond helpfully in any other way, for example, by providing a summary of the content of the reference.
Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks