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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Hi, we have an issue regarding a reference that we have received.

Resolved Question:

Hi, we have an issue regarding a reference that we have received. We are a Fostering Agency and we took up references from a former employer (“author”) on a prospective new foster carer (“applicant”). We stated on the reference request that it would be taken in confidence.
The reference we received was sufficient enough for us to decide that we did not wish to take the carers application any further.
We have received a formal subject access request from the applicant under the Data Protection Act 1998. Whilst the reference is held in confidence by our organisation we do have a duty to comply with the Data Protection Act. Under this Act the applicant has a right to receive copies of the information we hold about him unless particular exemptions apply. These exemptions include information about third parties where the third parties’ interest in the data remaining confidential is greater than the applicants interest in receiving the data.

We have followed protocol and asked the author whether they object to us releasing the reference to which we have had the following reply…

“I object to the release of my reference on the following grounds:

1). As clearly stated on the reference form the responses are confidential and are not to be shared without consent, the consent was declined on the completion of the form. The reference was given on the explicit agreement that it would be confidential.

2). Under the Children Act 2004 I recognise my statutory duty to inform the Local Authority regarding concerns I have when I believe some ones suitability to undertake care of children should be questioned.

Under the principles of safeguarding it was important to disclose concerns I had regarding this persons conduct and personality. I believe to not undertake this disclosure would have placed children at risk of harm.

From statutory documentation such as Working Together and Serious Case Review outcomes it is evident that disclosers must be made to the Local Authority to aid them In informed decision making, which should in my opinion take a higher precedence over the right of the applicant to the information.

If information such as this is likely to be shared and not in confidence, knowing this would likely affect people being frank and open on their concerns with respect on safeguarding children.

3). The reference was given confidentially to you and I believe the contents of this reference might affect the health and wellbeing of the requester.

4). I had a duty of care to disclose in the reference the information without fear of retribution, the fear of retribution is affecting my health and wellbeing.”

I understand on reading the Data Protection Act that as the receiver of the reference we are obliged to provide the applicant with a copy unless there is really good reason not to.
The author was fairly scathing about the applicant and I feel pretty sure the author has said too much and expressed their own personal opinion which is why they do not want it released.
Which ever decision we make someone is not going to be happy so I want to make sure the decision we make is the right side of the law.
Please help.

Mick Jillions
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

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:



  • Any express assurance of confidentiality given to the referee.

  • Any relevant reasons the referee gives for withholding consent.

  • The potential or actual effect of the reference on the individual (for example, have they been prevented from taking up a provisional job offer).

  • The fact that a reference must be truthful and accurate and that without access to it the individual is not in a position to challenge its accuracy.

  • That good employment practice suggests that an employee should have already been advised of any weaknesses.

  • Any risk to the referee (for example a realistic threat of violence or intimidation by the individual towards the referee).


 


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.

Customer:

Thanks. Looking at the factors to be considered....

Customer:

  • Any express assurance of confidentiality given to the referee. This was given

  • Any relevant reasons the referee gives for withholding consent. Mainly that it was given in confidence but also that they feel fear of retribution

  • The potential or actual effect of the reference on the individual (for example, have they been prevented from taking up a provisional job offer). We did halt the assessment on the basis of the reference

  • The fact that a reference must be truthful and accurate and that without access to it the individual is not in a position to challenge its accuracy. Certainly, some of it is hearsay/personal opinion and not supported on file

  • That good employment practice suggests that an employee should have already been advised of any weaknesses.

  • Any risk to the referee (for example a realistic threat of violence or intimidation by the individual towards the referee). They do say they fear retribution

Customer:

What would you do?

Ben Jones :

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.

Ben Jones :

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

Ben Jones and other Law Specialists are ready to help you