Employer Stopped from Providing Reference Containing Details of Disciplinary Allegations and Sickness Record

An employer who provided a standard reference has been stopped from providing a further reference containing details of disciplinary allegations against the employee and of his sickness record. 

In AB v Chief Constable, A obtained a new job which was conditional on receipt of a satisfactory reference. AB had been off sick for about six months, following the instigation of a disciplinary investigation into suspected misconduct. His manager agreed to provide a standard reference and not to continue the disciplinary proceedings. The reference request sought details of AB’s sickness record in the last 12 months, his reason for leaving and anything further that might be relevant. A standard reference was provided which confirmed the dates of employment, job title, that it was not the employer’s policy to provide any further information and a disclaimer of liability for the content of the reference. The job offer was confirmed and AB resigned. 

When the Chief Constable found out that a standard reference had been provided, he considered it misleading and wrote to AB telling him that he would be providing a further corrected reference with details of his sickness reference and the outstanding disciplinary allegations. AB issued legal proceedings and the employer agreed not to provide the reference until the Court had ruled on the matter.

The High Court ruled that the employer did not owe a duty of care to the new employer to provide the further information. A duty of care only arises where there has been an assumption of responsibility and since the first reference contained a clear disclaimer, a reasonable recipient of the reference would take it to mean that the employer’s policy was only to provide basic information and that it was not assuming any responsibility in relation to the giving of the reference or the accuracy of the information provided. Read as a whole, the reference was not misleading. 

The High Court also ruled that the employer could not provide details of AB’s sickness record as this constituted sensitive personal data and no Schedule 3 “fair and lawful processing” condition had been met. The details of the disciplinary allegations were personal data and had to be processed fairly, in accordance with one of the less stringent Schedule 2 “fair and lawful processing” conditions. The Court concluded that it would not be fair for this information to be provided in circumstances where AB had been told that a standard reference would be provided and the disciplinary allegations discontinued and he had resigned in reliance on those assurances. The disclosure of details of the disciplinary allegations would therefore be unlawful. 

Employers will be comforted by the Court’s finding that a disclaimer of liability in a standard reference is effective. An employer who provides a reference does not have to answer specific questions asked by a prospective employer. The provision of a standard reference with an appropriate disclaimer will mean that the reference is not misleading. 

The case also acts as a reminder that employers need to be careful about disclosing details of sickness absence, particularly about the cause of the absence, and other sensitive personal data when providing references. They should satisfy themselves that a Schedule 3 condition for processing has been met before doing so, such as that the employee has given their explicit consent. In addition, employers need to ensure when providing a reference that they bear in mind the obligation to process personal data fairly. This is in addition to the obligation to ensure that any reference provided is true, accurate, fair and not misleading – failure to do so could result in a claim from either the employee or prospective employer for negligent misstatement.

Doyle Clayton are experts in data protection law and can advise on data protection issues arising throughout the employment relationship, from recruitment, through employment to termination.  Please contact Piers Leigh-Pollitt for further information or email info@doyleclayton.co.uk.