I agree with Catherine. I have knowledge of a similar situation, in
that case the prospective employer did release their 'file note' and in
my view behaved entirely properly - the issue is still being contested
by the employee and ex-employer.
Trevor
>>> Catherine Sclater <[log in to unmask]> 08/05/03 11:09:57 >>>
My own personal view is that the 1998 Act and the OIC have made clear
that although there is no right to request access from the referee,
there is from the recipient data controller. The data subject is
entitled to know what her previous employer has said, as the "informal
conversation" has in effect amounted to a negative reference which has
lost her a job. The previous employer should not make derogatory
comments unless he is willing to stand by them, as there can be no
reliance on the "off the record" nature of the chat, if that is then
acted on.
Bottom line is employers should be willing to justify anything said in
a
reference, and a would - be employer should consider how much weight
to
place on a reference or "off the record" conversation, if the past
employer is not willing to commit it to paper, and insists on
confidentiality.
I'd release the file note, and leave it to the data subject and past
employer to slug it out. I don't think the past employer has any right
of action against you, as you are complying with the statutory duty in
the DPA to allow subject access, and the decision to release third
party
info is always at the end of the day at the data controller's
discretion.
-----Original Message-----
From: Emma Chilcott [mailto:[log in to unmask]]
Sent: 08 May 2003 10:09
To: [log in to unmask]
Subject: Subject Access Request - Third Pary Information
Dear all,
Hope you can help. Sorry for the length but this is a bit of a saga!!
We have a situation where an individual who applied for a job with us
has had their offer of employment withdrawn due to unsatisfactory
references received. In particular, her last employer refused to
provide a written reference.
The individual knows that we spoke with her last employer after they
refused to provide a reference. She has made a request for all
information we have in relation to the phone call as she believes that
derogatory things were said by the employer, leading to the withdrawal
of the offer. Our HR department has confirmed that the offer of
employment would have been withdrawn regardless of the conversation.
But the plot thickens . . . We made a file note following the call.
Normally under a Subject Access Request, we would consider this to be
personal data that the individual could request. However, because
there
is third party information involved (belonging the last employer), we
have sought permission from the third party to release the information
(we wouldn't be able to take sufficient steps to protect the identity
of
the third party as it is a small firm and it would be obvious who had
made the comments, which could be seen as derogatory)
The former employer has come back and said he doesn't give permission
to
release the information. He is also disputing the content of our file
note and most importantly, is very annoyed that we made a file note
when
the conversation was supposed to be "off the record".
My feeling is that after seeking consent and not getting it, we should
be able to withhold the information as we need to consider the duty of
confidence owed to the third party who made it clear to us that the
conversation was informal. Following Commissioner guidance on SARs
and
third party information, I don't think it is reasonable to disclose
the
information without third party consent.
What do you think? I'd be grateful for other views on this.
Many thanks,
Emma
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