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DATA-PROTECTION  June 2011

DATA-PROTECTION June 2011

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Subject:

Re: References

From:

David Hirst <[log in to unmask]>

Reply-To:

David Hirst <[log in to unmask]>

Date:

Tue, 7 Jun 2011 17:21:39 +0000

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (159 lines)

I wonder if it was this one Jane:-

McKie -v- Swindon College ([2011] EWHC 469 (QB)

http://www.employmentcasesupdate.co.uk/site.aspx?i=ed8339

'Judgment on liability in proceedings where the claimant had been dismissed from his new job as a result of an e-mail from a previous employer. The respondent was found to be guilty'

Different facts of course, and the e-mail was not a reference, but nevertheless a very interesting read as the High Court went through the range of issues and possible remedies.

My personal opinion is that is was, indeed, 'unfair processing of personal data', and there is a strong argument that the data should have been expunged.

David Hirst

Legal Adviser
University of Sunderland

4th Floor, Edinburgh Building,
City Campus,
Chester Road,
Sunderland, SR1 3SD

[log in to unmask]

Direct: 00 44 (0) 191 515 2452
Fax: 00 44 (0) 191 515 2456


-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Jane Holden
Sent: 06 June 2011 15:49
To: [log in to unmask]
Subject: Re: [data-protection] References

There is a case which covered a very similar situation to this and I
can't for the life of me find reference to it.  If I find it I'll let
you have it.

1.  This information should not have been passed to the prospective
employer.  We have clear guidelines that cover the giving of references
to try and avoid this type of thing happening.  As for good reason - has
the manager good one?
2.  I do not agree that the answer "yes" should be given.  The
individual was not "found guilty" of anything.  Heavens we'd end up
giving a positive answer to many innocent people if this were the case.
Accusation does not a guilty person make.

In my mind disciplinary proceedings does not mean investigation of, it
refers to a disciplinary record - which I assume this person has not
got.

Not sure how long ago the incident was but should a record of the
investigation still be kept if the individual is cleared?

Happy to be corrected.

Jane Holden
Corporate Services Officer
Legal Services
Barrow-in-Furness Borough Council
Town Hall, Duke Street
Barrow-in-Furness
Cumbria  LA14 2LD
Tel:  01229 876452
Fax: 01229 876515 





-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Phil Bradshaw
Sent: 06 June 2011 15:39
To: [log in to unmask]
Subject: [data-protection] References

Employee is accused of theft in the workplace. Police are involved.
Arrested and charged. Thrown out at Crown Court pre-case conference when
evidence found to be wholly insufficient to convict. Proceeds
nevertheless to full internal disciplinary hearing with similar result.
No case to answer.

Employee later applies for external jobs. Manager mentions in giving a
reference that there had been disciplinary proceedings.

Assuming that the reference was factual and complete (i.e. that it says
employee returned to work with no adverse findings) :

1. If no specific question was posed by the prospective employer, was
mentioning the disciplinary proceedings at all without prior discussion
with employee unfair processing of personal data ? Was there any good
reason to do so ? 

2. If yes, do you nevertheless agree that if the question was
specifically asked "Has X ever been subject to disciplinary proceedings"
then the answer 'yes' must be given with an explanation ? 

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