References – what can and cannot be provided

The individual concerned had been off sick for about 6 months following commencement of a disciplinary investigation into suspected misconduct. He obtained a new job which was conditional upon receipt of a satisfactory reference. His manager agreed to provide a standard reference and to discontinue the disciplinary proceedings. The standard reference was provided with a comment that it was not the employer’s policy to provide any further information and a disclaimer of liability for the content of the reference. The request had asked for details of his sickness record in the last 12 months, reasons for leaving and any other relevant information.

The Chief Constable considered that the standard reference was misleading so he wrote to the individual informing him that he was proposing to provide a corrected reference detailing the individual’s sickness absence and the outstanding disciplinary allegations. The individual promptly issued proceedings and the Chief Constable agreed not to provide the reference until the Court had determined the issue.

The High Court determined that there was no duty of care owed by the employer to a new employer to provide further information. Such a duty only arose where there was an assumption of responsibility by the former employer; and the first reference contained a clear disclaimer, so that someone receiving the reference would clearly understand that it was the employer’s policy to only provide a standard reference with basic information and there was no responsibility assumed for the information given.

Interestingly, the High Court determined that the employer could not provide information regarding the individual’s sickness record because this constituted disclosure of sensitive personal data under the Data Protection Act and the condition of fair and lawful processing had not been complied with. Furthermore the details of the disciplinary allegations were personal data and had to be fairly processed in accordance with the Data Protection Act. Therefore the High Court held that the disclosure of this information would be unlawful.

This is good news for employers who sometimes consider that they have a duty to provide information about employees for the benefit of the prospective employer but who, in doing so, may find themselves at risk of legal action. If a clear disclaimer of any liability in the reference is provided, the reference will not be considered to be misleading if it only provides standard basic information. The other interesting thing about this decision is the fact of sickness records and disciplinaries being sensitive personal, and personal, data under the Data Protection Act and therefore needing to be properly processed and for the employee to give explicit consent for its release. All this will provide further ammunition for employers to only provide a standard reference with basic information and add a disclaimer.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.