An employee is losing job offers because of a bad reference given by an ex employer. What can he or she do?
Ex employers have a duty to take reasonable care to ensure the information it contains is true, accurate and fair, and that it does not give a misleading impression (Bartholomew v London Borough of Hackney [1999])
This will include making reasonable inquiry into the factual basis of statements in the reference (Cox v Sun Alliance Life Ltd CA 2001 [2001]). However the reference writer should not be expected to assess the fairness of an earlier investigation (Hincks v Sense Network Ltd [2018] EWHC 533 (QB))
In Spring v Guardian Assurance plc 1994, the House of Lords held that that an employer who gave a reference in respect of a former employee owed that employee a duty to take reasonable care in its preparation and would be liable to him in negligence if he failed to do so and the employee thereby suffered damage.
Under the Data Protection Act 2018 (incorporating GDPR), data controllers must comply with certain data protection principles, including:
• Section 35(1) Data Protection Act: the processing of personal data for any of the law enforcement purposes must be lawful and fair.
• Section 37: Personal data processed for any of the law enforcement purposes must be adequate, relevant and not excessive in relation to the purpose for which it is processed.
• Section 38(1): personal data processed for any of the law enforcement purposes must be accurate and, where necessary, kept up to date, and every reasonable step must be taken to ensure that personal data that is inaccurate, having regard to the law enforcement purpose for which it is processed, is erased or rectified without delay.
• Section 38(3): In processing personal data for any of the law enforcement purposes, a clear distinction must, where relevant and as far as possible, be made between personal data relating to different categories of data subject, such as—
(a)persons suspected of having committed or being about to commit a criminal offence;
(b)persons convicted of a criminal offence;
(c)persons who are or may be victims of a criminal offence;
(d)witnesses or other persons with information about offences.
All reasonable steps must be taken to ensure that personal data which is inaccurate, incomplete or no longer up to date is not transmitted or made available for any of the law enforcement purposes.
• Section 39: Personal data processed for any of the law enforcement purposes must be kept for no longer than is necessary for the purpose for which it is processed.
Therefore, where someone is losing job offers due to a bad reference given by an ex employer, it may be possible to write to the ex employer, referring to the Data Protection Act, and ask them to correct any inaccuracies and amend their references. A claim in negligence may arise if the reference is inaccurate or misleading.