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LEGAL
LAW
Thinking of
By Ibrahim Hasan
Each month we hope that giving a reference,
this section of the magazine
will inform, educate and
sometimes also maybe
puzzle you in the big wide
world of UK Law
think again
Employers are often asked to • However, there is no duty
give references in respect of on employers to be “full and
employees who are moving comprehensive”. This is
to new jobs. Whilst most imposing too high a burden.
still partake in this practice • Employers cannot break
care needs to be taken. Bad references down into individual
references are becoming sentences and state that
a growth area of litigation. each individual sentence was
Options for an aggrieved factually correct. References
employee, if economic loss must be looked at in the
results from a damaging whole.
reference, include a claim In the case of Cox v Sun
for defamation, malicious Alliance Life Ltd (2001) it was
falsehood, discrimination or held that Sun Alliance had
harassment. provided an unfair reference
Whilst it may be good for Mr Cox. It implied he was
employment practice, contrary sacked for taking bribes when
to popular belief, there is no he had in fact resigned with
legal obligation on employers compensation. The company
to supply references in had agreed to provide a
respect of employees. The neutral reference. But a quiet
only successful cases based word in the ear of his new
on a failure to give references employers ended Mr Cox’s
have been where refusal was career. The Court of Appeal
ancillary to allegations of racial was unimpressed and made it the data subject. As a result an to the disclosure or in certain
or sexual discrimination e.g. in clear that when this happens, employer who has provided other limited circumstances).
Coote v Granada Hospitality there is no such thing as an such a reference will have The possibility of an individual
Ltd. (1998). “off-the-record chat”. no obligation to respond to being able to obtain access to
However what is clear is that But how would an aggrieved a request for access to that confidential references will
once an employer decides employee get hold of his reference by the subject and be a matter of concern for
to give a reference then it reference to ascertain whether to that extent confidentiality employers, particularly as any
owes a duty to the employee his employer has breached will be preserved. inaccuracies in the reference
in respect of the contents of the above duties. Enter the By contrast there is no could give rise to proceedings
the reference. Caselaw in the Data Protection Act 1998. parallel exception for the party in defamation or negligence.
last few years has confirmed This strengthens the rights of who receives the reference. Employers should consider
this. In Spring v Guardian individuals to gain access to This means that the person issuing guidance to managers
Assurance [1994] Lord Woolf personal data held on them or individual to whom the and personnel officers on
stated that references should by organisations, even where reference is sent will, in the giving of references. This
be “based on facts revealed such data is held in paper principle, have to disclose the should emphasise the need
after making those reasonably files rather than automated contents of the reference if a for references to be drafted
careful enquiries which, in the form. However the Act request is made by the data with extreme care taking into
circumstances, a reasonably recognises that such rights subject. The only limitation on account the above caselaw to
careful employer would make.” will be inappropriate in certain this right is found in section minimise the risk of liability. As
In Bartholomew v London situations where the need for 7(4) of the Act. The effect of ever where there is any cause
Borough of Hackney [1999] confidentiality is paramount this section is to ensure that all for concern legal advice should
the Court of Appeal made As a result Schedule 7 passages identifying the author be sought.
three statements of general provides an exception for of the reference or any other
principle in connection with confidential references individual mentioned in the Ibrahim Hasan is a director
references: given by a Data Controller reference have to be deleted of Act Now Training
• There is a duty to ensure that in connection with, amongst before a copy is provided and a consultant with
references are true, accurate other things, the employment (unless the author or the IBA Solicitors.
and fair in substance. or prospective employment of individual in question consents e: ih@informationlaw.org.uk
We want to know what you think - email us: info@passionislam.com
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