Case study – Richard – Previous employer disclosing a conviction in a reference

Richard contacted our helpline for some advice following a request he’d made to his previous employer for a reference. He’d worked for them for almost 20 years and his advisor at the job centre suggested that getting their agreement to provide a reference would help him when filling out job application forms.

His previous employers had confirmed that although they were happy to provide a reference which was factually accurate, it would be on the basis that they would also set out the details of his conviction. Richard wanted to know whether his previous employer was entitled to disclose this in a reference.

We were able to advise that Richard’s previous employer would be unlikely to be able to include details of his conviction in any reference unless they had received his explicit consent to do so. We explained that as the Data Protection Act classes criminal convictions as ‘sensitive personal data’ then it needed to be treated with greater care than other personal data as it could potentially be used in a discriminatory way.

We advised Richard to contact his previous employer and explain that:

  • As they had always provided a reference to previous employees this led him to believe that he had grounds to claim a reference
  • The law states that any reference must be ‘fair, truthful and accurate’
  • He refused to give explicit consent for details of his conviction to be disclosed and that he would claim compensation from them due to a breach of the Data Protection Act if they proceeded to disclose information.

In addition to contacting our helpline, Richard also spoke to the Information Commissioners Office who confirmed that where sensitive personal data was concerned then many conditions needed to be met when an organisation processes this type of data. In their opinion, it was unlikely that Richard’s previous employer would be able to meet these conditions.

Richard got back in touch with us several weeks later and confirmed that having a better understanding of his previous employers responsibilities enabled him to challenge their decision to disclose details of his conviction in any reference they provided.

His employers have now provided him with a reference stating only that during the time he’d worked for them he had demonstrated the necessary skills to undertake the job he was employed to do.

 

Lessons

This case shows that employers can be confused about what information they can include in a reference with many believing that they have a ‘duty’ to disclose details of a criminal record if they know about it. However, as can be seen the ICO are very clear about the conditions which need to be met before this type of data can be disclosed and the consequences for the employer if they chose to do so.

Being very clear about what his previous employer was entitled to disclose gave Richard the confidence to challenge them over this.

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Notes about this case study

This case study relates to Unlock’s helpline.

Names and details have been changed to protect the identity of those involved.

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