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.”
