Where a job applicant does not give his or her current or most recent employer as a named referee, can this employer be contacted instead of the named referee?

The Employment practices data protection code, issued by the Information Commissioner as guidance to compliance with the Data Protection Act 1998, specifies that employers should always obtain a job applicant's signed consent before seeking any information about him or her from a third party. Job applicants therefore have the right to know in advance what the prospective employer's intentions are in respect of any proposed reference checks before the checks are instigated.

Although the code is not legally binding, its provisions can be taken into account by a court or tribunal in the event of a legal challenge against the employer.

It follows that an employer should not, without the job applicant's specific written consent, seek to contact his or her current or most recent employer for a reference. Employers should also respect any request from job applicants not to contact their current employer until they have given formal notification of their resignation.