REFERENCES - 16.06.2016

References marked “private and confidential”

Providing information

Like most employers, you probably receive reference requests from third parties about your current and former employees. One of our subscribers is in this position, having been approached by another employer. Whilst they are happy to provide a reference, they can’t be entirely complimentary about their former employee - in fact, there are a few things they would like to warn the other employer about, i.e. their former employee had some bad habits, including terrible timekeeping and hiding unfinished work.

You’ve been warned

However, if our subscriber discloses this information - something they would certainly appreciate if the boot was on the other foot - they don’t want their former employee finding out. They’ve been told that if they mark their reference “ Private and confidential - for the recipient only” , the document will be protected by law and their former employee has no right to see it - in other words, they can be as candid as they like and it will stay between our subscriber and the other employer. But is this really true?

A common myth

The short answer is “no” - this is yet another myth which exists in employment law. It arises due to a widely misunderstood provision that’s contained in the Data Protection Act 1998 . It says that where a confidential reference is provided in relation to employment it will be exempt from any subject access request (SAR) that’s made by the individual it relates to, although it can be disclosed on a voluntary basis.

Not a blanket provision

This is generally why people are advised to mark references they give as “private and confidential”. What’s often missed here though is that the exemption rule applies only to the provider of the reference - it does not apply equally to the recipient of the reference and they can, of course, also receive a SAR from one of your employees. In this situation the recipient must disclose a reference where it is reasonable in all the circumstances to do so, even if the author of the reference tells them not to do so.

Proposed litigation

In addition to the above, where an employee, or a former employee, is considering bringing legal proceedings against an employer they will be entitled to see all documents that are relevant to their case (except correspondence between the employer and its legal advisors). There are no exemptions here and the words “private and confidential” won’t help you in the slightest.

Tip. That doesn’t mean you should leave “private and confidential” off your references - the words still indicate to others that the contents aren’t for general reading or distribution. Just remember that, even if you use them, the employee who is the subject of the reference could still read whatever it is you’ve written about them. As this is just one of the many risks associated with providing references, you may prefer to provide basic references only (see The next step ).

For a free reference reply, visit http://tipsandadvice-personnel.co.uk/download (PS 18.13.04).