What rights of access do employees have to job references?
Under sch.7 to the Data Protection Act 1998, if an employer provides a confidential employment reference about an employee or ex-employee to a prospective new employer, the employer is permitted to refuse to disclose that reference to the employee if he or she requests to see it.
However, the same exemption is not available where the request to see the reference is made by the employee to the recipient of the reference, the prospective employer. In this case, the provisions in the Data Protection Act 1998 are more complicated. Section 7 provides that the prospective employer is not obliged to comply with the employee's request unless either the author of the reference has consented to its disclosure or it is reasonable in all the circumstances to comply with the request without the author's consent. In determining whether it is reasonable to comply with the request without the author's consent, the prospective employer must consider: any duty of confidentiality owed to the author, any steps taken with a view to seeking the author's consent; whether the author is capable of giving consent; and any express refusal of consent by the author.
In any event, this does not excuse the prospective employer from disclosing as much of the reference as is possible without revealing the identity of the author, whether by the omission of the author's name or other identifying particulars.