May 13, 2019

Does GDPR Affect Your Employment References Process?

Does a candidate in a recruitment exercise have a right to see employment references requested and received from their current or former employer?

You’re part way through an extensive recruitment process. The hiring manager has decided to make an offer of employment to a candidate. The offer is of course subject to receipt of a satisfactory reference. However, you receive the reference from a current or former employer and it is anything but satisfactory forcing you to withdraw the offer.

Your ‘would-be’ candidate might be fully aware that their application for employment contained inaccuracies. Should a reference be requested and provided, a current or former employer would most likely expose these inaccuracies.  Sheepishly, they might go away, never to be heard from again.

What should I do if a candidate requests to see the reference provided by their current or former employer?

The same ‘would-be’ candidate could express shock at the withdrawal of their offer. The candidate may suggest that a current or former employer has provided an inaccurate reference.  The candidate could make a request to see the reference. This would be in the form of a subject access request.

What next? You’re aware that this candidate has a right to access the personal data processed about them in accordance with Data Protection Act 2018. This is known as GDPR (General Data Protection Regulations (Regulation (EU) 2016/679)), the Directive this legislation implements.

You’re also aware of the sensitivity of disclosing a reference provided to you in confidence. Consider the situation if it was the other way around. Would you want an unfavourable reference, provided in confidence to another, in conjunction with an application for employment by a former employee, disclosed to that individual?

Your rights in line with the Data Protection Act 2018

Data Protection Act 2018 allows you, as the recipient of the candidate’s subject access request, to withhold the content of the reference that is currently being processed by you. This addresses an earlier anomaly whereby the subject of an unfavourable reference, withheld by the author, could instead approach the recipient.

You could choose instead to disclose the content of the reference to the candidate. However, you do not have the author’s prior consent. In disclosing extracts, you risk identifying the author. You also risk disclosing their personal data or that pertaining to any other third party.  In addition, you should exercise caution because the subject access request could extend to all personal data processed. The content of the reference might only form part of this.

Employment References – Next Steps

Moorepay customers who would like any specific advice on reference policies should contact the Advice Line on 0345 073 0240.

If you’re not a Moorepay customer you can find out more about our HR & Employment Law Advice here.

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About the author

Michael Farry

About the author

Michael Farry

Mick has 10 years' experience in providing employment law advice and support in a consultancy setting, both on-site and remotely. His experience extends to handling complex redundancies and TUPE transfers. Mick enjoys working closely and in partnership with corporate and SME clients across a wide range of industries. Mick qualified as a solicitor in 2018 following a two year training contract with employment law as its primary focus. During that time, Mick attained invaluable experience representing clients engaged in contentious employment law disputes and health and safety prosecutions. At Moorepay, Mick provides employment law advice to clients and works closely with the Employment Law Advice Line supporting the department’s continuing professional development.

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