References/data Protection Act

[Guest]

Can any one help. I have tried looking in to this for the last four hours but am no closer to an answer.

After receiving references for a prospective employee We decided not to employ them. That person has asked for her references to be sent to them. are we obliged under the data protection act to supply her with these

[mundia]

I think the person has to go to the person who wrote the reference rather than you for a copy.

 

Im sure someone else may have a clearer understanding but I have always been sent a copy of my references by previous employers.

[Guest jenpercy]

I think the person has to go to the person who wrote the reference rather than you for a copy.

 

Im sure someone else may have a clearer understanding but I have always been sent a copy of my references by previous employers.

 

always try ACAS first. I typed erferences into their search, folowed a likely lead and then typed references into that. took less than 5 minutes.

 

http://www.ico.gov.uk/upload/documents/lib...des/references_

 

Not very clear cut I'm afraid. Someone applied to me for a job, which I gave them subject to references. I was then told in confidence that there wre reasons not to employ them (not full details because of confidentiality). Luckily, I was then in a position to say that numbers for the summer weren't good enough.

 

I ws worried that this person would ask to see references, but luckily it didn't get far enough for me to receive them!!!

[JacquieL]

I know you can ask to have a copy of your references but I don't think that you have to be given them but, as mundia says, you ask the person who wrote the reference. If necessary you can try to take action under the freedom of information act. If someone won't let you see what they have written then that says a lot.

I do think there is a real danger in being warned verbally about someone being unsuitable. I know this happens in private, but all advice is against verbal reports being given, especially if they then say they can't tell you why as it is confidential! How would you know whether what someone was saying is true, or whether there could be other unprofessional reasons that they are giving a bad reference? I can see that turning into real problems if it was taken further by a candidate, and could lead to litigation.

[JacquieL]

I've found this on ACAS

 

“ Job offers are sometimes made 'subject to satisfactory references being received', but this is not advisable. The referee may simply fail to provide any kind of reference. There is no legal requirement to do so. Or a referee may wrongly indicate the applicant is unsuitable, in which case if the offer is withdrawn on those grounds, the organisation could face legal action by the applicant.”

 

http://www.acas.org.uk/index.aspx?articleid=752

[Guest jenpercy]

I've found this on ACAS

 

“ Job offers are sometimes made 'subject to satisfactory references being received', but this is not advisable. The referee may simply fail to provide any kind of reference. There is no legal requirement to do so. Or a referee may wrongly indicate the applicant is unsuitable, in which case if the offer is withdrawn on those grounds, the organisation could face legal action by the applicant.”

 

http://www.acas.org.uk/index.aspx?articleid=752

 

Put this together with the general refusal to give references these days and perhaps Safer Recruitment isn't as straightforward as it seems. If you read the article i linked to it says that under freedom of information you can ask to see "facts" about you, so there are grounds for allowing applicant to see factual parts of reference. It may also be appropriate to ask for factual only matters when asking for reference.

 

In the case I referred to, the applicant stated that they left previous job because they did not have enough hours available, a phone call to ask for references brought out the fact that they were sacked. This is a fact, and a fact that the applicant was not honest in their application. however, I preferred to say that we did not have the work, this was true, but also I did not want to go down the road of possible requests to see references.

 

I have also had experience of potential references being bad, when we employed someone we had liked from a work trial. I was reprimanded by OFSTED for having no references and then her previous employer refused a reference on the grounds that if she gave one it would be bad. This person is one of my most trusted and reliable members of staff.

 

Positions should always be granted with a probation period to get over these things, although there again, I have had staff "relax" once trial was over.!!!

[redjayne]

With the safeguarding and Safer Recruitment legislation references on all people you are interviewing need to be obtained prior to interview, this stops the 'subject to satisfactory references' bit becoming an issue. When you send out application packs it pays to advise everyone that you will need references prior to interview, it can cause a few issues if people haven't told employers they are looking elsewhere, but it covers you. You can't give a reference back to a person that you haven't written as this is third party information, the referee has to provide this.

[Guest jenpercy]

From the government website

 

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.

 

In other words, it is the person who receives the reference who should disclose it.

 

this is from

 

http://www.ico.gov.uk/ and then search for references. When I try to paste full reference it shortens it.

[Guest jenpercy]

Also, you although there is a duty on a childcare organisation to take up references, there is no duty on even childcare organisations to provide one, as I have found out this can make Safer Recruitment a minefield.