SAR's and Employment References - ICO

[iancognito]

http://www.ico.gov.uk/upload/documen...references.pdf

[iancognito]

Re: SAR's and Employment References - ICO

Full text:

Data Protection Good Practice Note
Subject access and employment references

This good practice note clarifies how the Data Protection Act 1998 applies to
employment references. The recommendations also apply to other types of
reference, such as those provided for educational purposes.

The main issues

The Information Commissioner receives a lot of enquiries about:

• whether organisations can release a reference to the person who is the subject of the reference;
• how the Act applies to references; and
• the fact that references may have been given ‘in confidence’.

Individuals have a right to a copy of information held about them that is covered
by the Act. When an individual asks for a copy of a reference written about
them, many employers refuse to provide it because it was supplied in
confidence. This may breach the Act. The Act applies differently to references
which have been given by an employer and those which have been received by
an employer.

Do you have to give a copy of a reference you have written?

If someone asks for a copy of a confidential reference you have written about
them relating to training, employment or providing a service, you do not have to
provide it because of an exemption in the Act. However, you may choose to provide the information. It would seem reasonable to provide a copy if a reference is wholly or largely factual in nature, or if the individual is aware of an appraisal of their work or ability.

Do you have to give a copy of a reference you have received from
someone else?

References received from another person or organisation are not treated in the
same way. If you hold the reference 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 individual can have access to information which is about them, but may not
necessarily have access to information about other people, including their
opinion, provided in confidence.

The references you have received may be marked ‘in confidence’. If so, you will
need to consider whether the information is actually confidential. You cannot
sensibly withhold information which is already known to the individual. Factual
information such as employment dates and absence records will be known to
an individual and should be provided. Information relating to performance may
well have been discussed with the employee as part of an appraisal system.
Where it is not clear whether information, including the referee’s opinions, is
known to the individual, you should contact the referee and ask whether they
object to this being provided and why.

Even if a referee says that they do not want you to release their comments, you
will need to provide the reference if it is reasonable in all the circumstances to
comply with the request without their consent. You should 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, you should take account of factors such as:

• 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;
• 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; and
• any risk to the referee.

You should consider whether it is possible to keep the identity of the referee
secret.

Recommended good practice

In most circumstances, you should provide the information in a reference, or at
least a substantial part of it, to the person it is about if they ask for it. Even if the referee refuses consent, this will not necessarily justify withholding the
information, particularly where this has had a significant impact on the
individual, such as preventing them from taking up a provisional job offer.
However, there may be circumstances where it would not be appropriate for you to release a reference, such as where there is a realistic threat of violence or intimidation by the individual towards the referee. You should consider whether it is possible to conceal the identity of the referee, although often an individual will have a good idea who has written the reference.

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 anyway (for example, by providing a summary of the content of the
reference). This may protect the identity of the referee, while providing the
individual with an overview of what the reference says about them.

More information
If you need any more information about this or any other aspect of data
protection, please contact us.
Phone: 01625 545745
E-mail: mail@ico.gsi.gov.uk
Website: www.ico.gov.uk

[Bitingback]

Re: SAR's and Employment References - ICO

Thanks for the above Jan, however I have a related (I think) question, can employee records be requested using the Data Protection Act?

Thanks in advance

[Paule]

Re: SAR's and Employment References - ICO

Employment records: Employees have a right to know what information past, current or prospective employers have about them.

There are limitations on your right to see references. You only have a right to view a reference about yourself when it is in the hands of the people who received or requested it. But they can still take steps to protect the identity of the author, which may mean you don’t get all the information contained in the reference. You can challenge information you consider wrong or misleading especially when it could have an adverse effect on you, as a reference may. You can read the information commissioner’s code of practice on employment records.

There are some leaflets and documents, which explain in more detail, and these can be found here: Data protection