Must employers obtain consent from an employee before providing a reference?
Providing a reference is likely to involve processing personal data under the GDPR Regulation (2016/679 EU), in force from 25 May 2018. Therefore, the employer must ensure that it has a legal basis for processing data as set out in the GDPR. In relation to a reference, the most likely condition to apply is that the individual has consented to the data being processed. Generally, in the employment context an employer cannot rely on an employee’s consent to process his or her data, as the imbalance of power in the employment relationship can mean that consent is not freely given. However, in the context of providing a reference, an employee or former employee is likely to have a genuine choice about whether or not to consent.
The Information Commissioner’s (ICO) Data protection employment practices code recommends employers have a policy on giving references that includes a requirement that “all those giving corporate references must be satisfied that the worker wishes the reference to be provided”. While the code relates to the Data Protection Act 1998, rather than the GDPR regime, it remains useful for employers, pending updated guidance from the ICO. The code also recommends that, when an employee leaves the organisation, employers should keep a record on file of whether or not the employee wishes the employer to provide references on him or her. This question could be asked of the employee at an exit interview, for example, or include it in an exit questionnaire.
A prospective employer can enclose a photocopy of an individual’s signed consent to its seeking the reference in the reference request and this will normally be sufficient for the employer to process the personal data
If employers have any doubt about whether or not an individual has given consent, it should make contact to check that he or she wishes the reference to be provided. The employer should obtain the consent in writing if possible, or at a minimum, make a note of the individual’s verbal consent.
If you have any further questions on the subject matter then please contact Karen Scott on 07762 629 448 or get in touch by clicking here.
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