Is an employer obliged to provide a reference for an employee and does an employer have to obtain employee consent before doing so under the GDPR or Data Protection Act 2018?
Posted in : First Tuesday Q&A NI on 7 August 2018
Chris Fullerton
Arthur Cox
Firstly, there is no legal obligation for an employer to provide a reference. However, there may be a contractual obligation if provision of a reference is stated in terms of employment or a contractual staff handbook.
The GDPR and Data Protection Act 2018 (“DPA 2018”) require a lawful basis for processing personal data. This is particularly pertinent to references as they may also contain “special category" personal data e.g. sickness absence details.
Consent is one of the lawful bases that can be relied upon for processing personal data. However, ICO guidance suggests that consent is not the most appropriate basis in the context of an employment relationship due to the imbalance of
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Chris Fullerton
Arthur Cox
The main content of this article was provided by Chris Fullerton. Contact telephone number is 028 9023 0007 or email Chris.Fullerton@arthurcox.com
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