Topic Index
Duty of care
Data protection issues



  • Employers do not have to give references for their ex or soon-to-be ex-employees. It is entirely up to the employer whether it does so or not.
  • But if it does decide to give a reference, it must consider the duty of care that is owed to the person requesting the reference.
  • While there is generally no duty to provide a reference, there are some exceptions including where:
    • the ex-employer has expressly agreed to do so, e.g. in the terms of a compromise agreement
    • a refusal to provide a reference could be construed as victimisation as a result of the employee bringing, for example, a discrimination claim
    • there is a statutory or other legal obligation to do so, e.g. former employers in the financial services industry must provide prospective employers with all relevant information of which they are aware if a reference is requested (and this requirement will override anything that the ex-employer may have agreed on the employee’s departure about references)
  • Employers can be liable to both the employee and the prospective employer if inaccurate references are provided.
  • Confidential employment references constitute personal data under data protection law.
  • Such references are exempt from disclosure under subject access requests, but an individual is entitled to see a reference received by a new or potential employer, even if it is marked 'confidential'.
  • A prospective employer should never approach a job candidate's present or previous employer without the candidate's express permission because this would be unfair and a breach of data protection law....
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