Guide 7 - References
Preparation and disclosure of references
Guide 7 - references
Senior staff have the implied duty and moral obligation to provide a reference for students and other members of staff whose careers they are in a position to influence. This will involve the disclosure of personal data in the form of facts and opinions about the data subject and, as such, will be covered by the Data Protection Act 1998.
In addition to "standard" references for employment or placement at another academic institution, staff may provide references for internal candidates re. Employment/promotion and also references in the form of academic peer review provided by external academics relating to the promotion or appointment of an academic with whom they may have or have had a close working/research relationship.
Whilst the Act gives data subjects a general right of access to their personal data, it also provides for various exemptions from such rights and one of these is in relation to confidential references. Notwithstanding this exemption, which could be challenged in the Courts, the following guidance is given in the writing of references and responses to requests from data subjects for access to them.
2. Writing references
2.1 When writing a reference, bear in mind that the current interpretation of the Data Protection Act is that the Data Subject may have a right to see the reference whether or not it was written in confidence.
2.2 References should be factually correct and state within what parameters the reference is given. Where opinions about a person's suitability are disclosed, any comments made should be capable of defending and justified on reasonable grounds. Statements should not be made which the writer is not qualified to make.
2.3 If asked to express an opinion on an issue about which the writer has limited knowledge, an appropriate response might be, for example, "I know of nothing that would lead me to question X's honesty". Particular care should be taken if asked to provide a reference for a student is not known to the employee.
2.4 Where reference forms request information relating to sensitive data e.g. sickness, mental health problems, staff should not provide such data unless specifically requested to do so (in writing) by the data subject. I am not in a position to comment regarding X's health/sickness record.." would be a suitable response.
2.5 When a request is received from a potential employer, but the writer is unable or unwilling to give a reference, such a refusal should be communicated with caution so as not to imply a negative reference and thus disclosing personal data.
2.6 Do not submit a minimal reference inviting the recipient to telephone you for additional information. Once a verbal reference is committed to a written or electronic record, he/she is obliged to inform the data subject of the existence of this additional information.
2.7 Do not disclose any information if asked to give an unsolicited reference e.g. for a person who has not, to your knowledge, cited your name as a referee. Disclosure in the form of a reference should only be made following either confirmation of the identity of both the data subject and the employer, or on specific request of the data subject .
2.8 Keep copies of any references provided for a period of up to six months in case of possible litigation from unsuccessful applicants.
3. Requesting a reference
3.1 If you are applying for promotion within the College or for another job outside it and you know that a reference will be required from your current advisor/tutor/supervisor departmental head, always seek permission first before citing their name on an application.
3.2 If as a potential employer/provider of education you are requesting a reference from an external referee you should ask them to register whether or not they give their consent for the reference to be seen by the data subject should they subsequently request it from you (the Act does not allow the data subject to get direct access to the reference from the originator i.e. their current employer, nor does it allow the potential employer to disclose the details of any third party who can be identified in the reference e.g. the originator).
4. Responding to a request for a copy of a reference
A Data Subject has a right to request from a potential employer a copy of a reference submitted by the College or one of its staff. It should not be assumed that references are confidential. If a reference has been written "In Confidence" and clearly states this, the College has the right to refuse this request by stating the reason for the refusal in writing, although this exemption from disclosure to the Data Subject cannot be relied upon in all circumstances. A Data Controller can override an exemption if it is considered to be in the best interests of the Data Subject to do so. As a consequence, the Information Commissioner has advised that you should not put into a reference and opinions about a Data Subject that you are not able to justify.
The formal procedure for responding to a request to the College for a copy of a reference written by a member of staff is set out in the Code of Practice on "Access to Personal Data" and should be handled in the first instance by the College's Data Protection Officer acting on behalf of the College's Data Controller (Deputy Rector).
If, however, the request is a personal one to, say, a former tutor/supervisor/manager and you are happy to release a copy of the reference you have already submitted to a potential employer, there are no formal procedures to go through other than making sure that you obliterate from the copy any reference to a third party.