Should an employer share a confidential reference?

You may well expect that all employees have the right to access information that their employer holds about them and many of you will have had a Subject Access Request (SAR) where the employee wants to see the reference that was written about them that has resulted in the withdrawal of a job offer.

For Day Nurseries, Pre-schools and Out of School Clubs the issue of whether a reference is satisfactory is subjective, there may be occasions where the employer who receives the reference feels it is unsatisfactory and where another employer, receiving the same reference accepts this as satisfactory and works with it going forward.

However, there is an exemption under the Data Protection Act 2018 that allows employers to refuse to disclose a confidential employment reference to an employee or former employee if they request access to it.

So the first thing the receiving employer needs to establish is whether the reference is marked Private & Confidential and that the person sending the reference intended it to be treated in confidence. If that is the case the receiving employer can refuse to share the personal data with the candidate/new starter who requests a copy.

There is nothing to stop an employer who wants to disclose the reference from doing so. However when they do they need to be very careful not to disclose information about the person who supplied the reference without their expressed consent.

Where consent isn’t given a heavily redacted reference could be supplied.

If you need assistance with this or any aspect of managing references please call us on 01527 909436 or buy our  Reference Policy from our website.