Stamping ‘confidential’ on a reference offers employers no protection under the Data Protection Act, the Information Commissioner has confirmed.
The new guidance is not binding but reflects best practice and makes it clear that references received from third parties are “subject to the normal subject access rules”.
This means that, when asked, an employer will be obliged to disclose a reference to a job candidate or recruit, even if the reference is marked as ‘confidential’. Only providers of references benefit from the exemption, meaning they do not need to disclose details.
If employers are unsure about whether to disclose details, they should consider any assurances of confidentiality given to the referee, possible reasons behind the objection, the effect on the employee and any risk to the referee. If a reference can be made anonymous, this should also be considered.
Chris Garret, employment lawyer at law firm Allen & Overy, said: “As the guidance concludes that in most cases, employers receiving references should be able to disclose them, references should only be withheld where a compelling reason exists.”