Where an individual's employment offer is withdrawn due to an unsatisfactory reference do they have any right to see the reference?

There are two ways in which an individual may attempt to get access to a reference. The first is by making a subject access request under the General Data Protection Regulation (2016/679 EU) (GDPR), either to the employer that provided the reference or to the employer that received it, or both. However, the Data Protection Act 2018, which supplements the GDPR, provides an exemption from disclosure of confidential employment references, therefore both employers could refuse the employee's request.

Under the previous Data Protection Act 1998 regime, the equivalent exemption relating to confidential references applied only where the employee made the request to the employer that provided the reference. The employee could therefore access the reference by making a request to the employer that received the reference instead. This anomaly is removed by the Data Protection Act 2018.

The second way in which the individual would be able to see the reference would be through court proceedings if the individual took the view that a negligent reference had been given. The court is likely to order disclosure of the reference within the context of any such proceedings.