Someone who knows a bit about employment law

[asgoo]

I was just wondering if it is legal (in the UK) to hire a reference checking firm, that a business would usually outsource their recruitment stuff to, to check your owns references as an individual, and send it to you?
I found this statement online:

"A statement made in a reference is usually protected by "qualified privilege" if made in good faith and without malice because the current/ex employer and the prospective employer have a common interest in the content. This means that the parties must keep the reference confidential. If, however, the reference is passed to a third party then this confidentiality is lost. Accordingly, all references should be marked private and confidential so that all parties are aware of the confidential nature of the information."

Does this mean that as a third party (the ref check company) are obtaining it, the confidentiality rights are waived and the individual is allowed to see it?

However I found this on the .gov employment rights website:

"Once the worker starts with a new employer they can ask to see a copy of a reference. They have no right to ask their previous employer"

If, for example, an individual obtained a reference in such a way, and found that their old employer had made untrue/slanderous statements, could they take them to court using the reference as evidence? Where would the ref check company stand for having disclosed the information to the individual?

Many thanks in advance for any info on the matter!

[photosnob]

I have direct experience of this. When I was asked to leave within a week when a new manager asked about me from a previous company. He'd not done his job and asked for a reference, and whilst I'd not directly lied I didn't go into things I wasn't asked about. I was told I was sacked and the manager then said I'd walked out and resigned. Company grievance procedure sided with the manager, surprise surprise.

The law won't protect you. Employment law doesn't kick in for the first two years. I managed to sue for my notice period. They paid up before it went to court. Overall I found the process pretty annoying and utterly draining. For the amount of money we were talking about, I wouldn't bother again.

If there is law to protect you, don't expect everyone to play fair. This was a huge huge company everyone on here would have heard off. Not a back street affair. In hindsight it was right for me to not work there, and everything happened for a reason. But at the time being thrown on the scrapheap and not knowing how I was going to feed myself or pay the rent was pretty horrible. I wasn't entitles to any benefits because the company said I'd resigned, and I literally had to rely on family, my partner and friends to feed myself. I wasn't all in the right - but the idea that the law will protect you is a joke.

[asgoo]

Sorry to hear that, sounds like a rough experience. I was more thinking about it from the perspective of the reference checking company. I.E Could acting as a middle man between the ex employee and employer land you in hot water if things went to court based on the information you provided? Would you be liable for disclosing confidential info, supplied by the employer, to the ex employee, or are you covered as the employee has a right to know what is being said about them?

[Martin4x4]

The statement "They have no right to ask their previous employer" is wrong.

You have the right under the Data Protection act.

As to what you are suggesting, sounds like a can of worms.

http://www.theguardian.com/business/2013/nov/24/si...

[_dobbo_]

Does any employer actually give a reference these days? The absolute maximum we will do is confirm someone worked here between dates X and Y, and that's it.

Anything else that is requested just goes in the bin.

Also note that it's not OK to give a negative reference that could not be substantiated. So in this case, if your previous employer has given a negative reference, you have recourse against them:

https://www.gov.uk/work-reference

Martin4x4 said:

The statement "They have no right to ask their previous employer" is wrong.

Not according to the link above it isn't - seems odd that the data protection act trumps this?

Edited by _dobbo_ on Thursday 26th February 11:58

[Martin4x4]

_dobbo_ said:

Not according to the link above it isn't - seems odd that the data protection act trumps this?

As I said the above link is just plain wrong, you should note it doesn't include any reference to any law to back up that claim.

The data protection very specifically includes personal data on "work performance".

Right of access to personal data.

(1)Subject to the following provisions of this section and to an individual is entitled—

(d)where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking.

http://www.legislation.gov.uk/ukpga/1998/29/sectio...

[_dobbo_]

Respectfully - your .gov site about generic data protection trumps my .gov site specifically about work references? Allowing for that to be the case - what about this scenario:

- I receive request for work reference.
- I respond in writing.

I am not storing any data about that individual, so in the case of a data protection request, I have no data to provide, so cannot comply with any request to provide that data. What happens next for the individual seeking to view their reference?

[asgoo]

_dobbo_ said:

Does any employer actually give a reference these days? The absolute maximum we will do is confirm someone worked here between dates X and Y, and that's it.

Anything else that is requested just goes in the bin.

I think you would be lucky to get anything more than that from any HR Dept these days, without the permission and knowledge of the employee in question. But people do put the name and number of their old manager down, rather than the company details. In which case they may be prepared to give a questionnaire style reference response.
However I do think that where an old manager may talk to a new one, they may not be so keen to talk to a third party checking firm, "If they want a reference they can call me directly" etc
I guess there must be industries where it would be appropriate? Perhaps in sales and accounts, where the company may not wish to lose a colleague to the enemy, (and the business they would take with them), so it is in no parties interests to know the companies involved, and hiring a ref check company is the done thing?