SICKNESS ABSENCE - 27.06.2023

Reference requests and sickness absence

Unknown history

When you hire a new employee the last thing you want happening is that they end up taking lots of sickness absence . Apart from this being disruptive to your business and colleagues, there are potential financial consequences for you, e.g. sick pay for the employee and overtime for staff who pick up the slack.

To avoid ending up with a problem employee, when you write to their former employer requesting a reference could you ask them about the employee’s sickness absence history?

Sensitive information

Although this might seem like a reasonable request, it’s a dangerous one from your perspective. The first issue here is that all information about an employee’s health, including records relating to their sickness absence history, is classed as “sensitive data” under the GDPR .

There are special rules regarding the processing of sensitive data and it must not be requested by, or disclosed to, a third party without the employee’s express and freely given consent.

GDPR breaches

If the other employer sent you the employee’s sickness absence history without their consent and you looked at it, you could both be investigated by the Information Commissioner’s Office and subject to enforcement action. In this scenario you couldn’t say it was the other employer’s fault.

But what if the employee were to provide their consent to their sickness absence history being released to you - would that make any difference?

Discrimination risk

Whilst this might get you around the provisions in the GDPR , it still leaves you vulnerable to an allegation of discrimination. For example, if the employee’s sickness absence history revealed that they routinely take sickness absence due to a long-term health condition and you subsequently withdrew the offer of employment, they could claim disability discrimination.

You would be on dodgy ground here as it is unlawful to withdraw an offer of employment because of a disability.

Reference request

Therefore, our advice is don’t specifically ask for any information about an employee’s sickness absence history. That said, you can ask another employer to provide general information about an employee’s attendance record and whether this was acceptable to them when you make a reference request (see The next step ).

Of course, it is quite possible that the other employer could choose not to answer that question - which they are perfectly entitled to do.

Tip. A way around this is to ask in your reference request whether or not they would employ this employee again. If they leave the answer blank, you could call them to clarify why that response is missing.

For a reference request, visit https://www.tips-and-advice.co.uk , Download Zone, year 25 issue 14.