A reference point

Overzealous human resource departments and reports of high profile court cases can make it confusing to know where the law stands on employee references. Richard Bird sets the record straight.

Some human resources specialists have suggested that giving a negative reference is equivalent to giving an employee a free bonus payment from the courts. On the other hand, staffroom folklore always includes a colleague whose career was blighted by a head or principal who either would not, or could not, write a supportive reference.

While the law does not cover the inertia of reference writers, it does have something to say about other aspects. The principles that apply are duty of care, confidentiality and data protection.

The duty of care in regard to references is well-established, though as in all things legal, much depends upon circumstances. Broadly, a candidate who loses a post because of a negligent reference that falsely damns him can recover damages. 

A negligent reference that damages the employer who relies on it is also actionable. For instance, a reference that leads an employer to believe that a teacher is competent or safe with children when she or he is not, and which then is the cause of the school suffering a loss (such as the costs of dismissing and replacing that teacher), may possibly, be actionable.

This double whammy may seem to be a good reason for giving no references at all. However, there is probably a duty to provide one where failing to would imply dissatisfaction.

As always, it is a case of reasonable care. A reference which reflects an honest professional view, backed up by objective evidence, will not endanger the referee.

This is best secured by an objective performance management system and a culture of openness so that there are no surprises. 

Of course, there are still areas of difficulty. Can a statement of the popularity of a member of staff with colleagues or pupils have objective justification? Is it legitimate to describe a deputy as "having no strategic vision"? Have you, as that deputy, ever had the chance to demonstrate strategic vision? 

These judgements are the ones which are most useful to those appointing, and yet they are likely to be the most difficult to make objectively.

The law does not expect scientific accuracy. If something is done with adequate professional care and in good faith, the law will not condemn it. It will, however, condemn those who are malicious or recklessly careless. When giving references, it pays to be prudent and conscientious; but we should not be timorous.

Limits of confidentiality

What about people who suspect that their prospects have been blighted by a reference? Here there is an apparent clash between two principles: confidentiality and data protection. 

The law of confidentiality, put simply, prevents someone revealing to another something that has been conveyed to him in terms of confidence by a third party. Therefore, if one principal sends a reference in confidence to another, the second principal cannot show that reference to the subject of it without the first principal's permission.

Here, however, we run up against the right of a person to see data held on him/her and correct inaccuracies, which is enshrined in the Data Protection Act. 

We still await definitive judgements from higher courts, though the views of the Information Commissioner are available on www.ico.gov.uk 

Somewhat confusingly, it would appear that a person does not have a right to see a reference held at the originating institution (College A).
But, if the receiving college (College B) has a proper request for access to that reference, it cannot just refuse purely on the grounds of confidentiality. It has to decide whether, in all the circumstances, it should not reveal it.

Before making the decision, it should check with the author as to whether that person considered the reference to be confidential and whether there are reasons why the author would not want to be revealed. 

It is likely that steps will need to be taken to protect the identity of the author. It may only be reasonable to reveal part of a reference or to disclose a summary. 

Independent schools, because of a quirk of the interplay between the Freedom of Information Act and the Data Protection Act, may refuse to disclose any reference received on paper - unless it is held in a 'structured file'. This precludes most normal files in which references are usually held. 

The Information Commissioner's Office has advice on its website and if in doubt the ICO helpline is a good starting point.

Data should only be kept as long as it serves the purpose for which it was collected. Once an appointment process is over, references for unsuccessful candidates should be destroyed. 

To prove at some later date that proper safer recruitment procedures have been followed, the successful candidate's reference must be kept.