April 2024 - Your rights regarding employment references

Each month our Commissioner, Brent Homan, delves into a privacy issue which has attracted headlines or attention in the Bailiwick or across the globe. This month it’s about an individual’s rights to access information about them in employee reference letters.

This month, we released our investigative findings in relation to a complaint where a jobseeker’s offer of employment was rescinded after a reference had been provided to the Policy & Resources Committee. The individual sought a copy of the reference from P&R, who initially refused the request on the basis that it contained information about other people. After the ODPA issued an Enforcement Order, a redacted reference was provided. This allowed the individual to understand what was said about them and potentially validate its accuracy. 

This was clearly an important and delicate issue, requiring a careful balancing of the significant interests of both the referee and jobseeker.  In such situations a fully redacted reference is of no value to a jobseeker, as they would not be able to verify the accuracy of what was said about them.  At the other end of the spectrum, one must consider and assess the significant interests of 3rd parties whose information may be found within a reference and redact accordingly. In this matter a balance between the two was achieved, such that the reference letter was only partially redacted.

Notwithstanding the above, In response to this matter P&R announced that they intend to amend the data protection law so that, in future, the confidential reference exemption would also apply to the hiring organisation and not just the person providing the reference – meaning every reference whether given or received would be exempt from the right of access by the individual of which, the reference is about.

To be clear, we appreciate and respect the States’ wish to explore amendments to the law. Our responsibility is to independently enforce the law that is before us. Data protection law exists to safeguard people’s rights over information about them. We hope that any future amendments preserve a balance that allows people to validate whether accurate information about them is shared with prospective employers. This is important as it avoid risks associated with decisions made based on inaccurate information. From the reaction and significant attention this case has received, we believe that Guernsey residents would expect that balance.