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There is loads of case law from both Employment Tribunals and the Employment Appeals Tribunals concerning the effect of giving what are seen as detrimental references. Best example I can give off the top of my head is the Bullimore v Pothecary Witham Solicitors.

Member of staff had brought a claim for sex discrimination against her past employer. A prospective employer requested a reference from the previous employer, the reference referred to the sex discrimination claim and stated that the employee had a "poor relationship" with the partners and could be "inflexible". As a result of this reference, the prospective employer did not employ the employee. 

The employee brought a claim against the prospective employer, as well as the past employer. The prospective employer settled out of court. The Tribunal considered that the prospective employer's unlawful action of rejecting the employee on the basis of the reference broke the chain of causation so that the past employer was not liable. The EAT reversed the Tribunal's decision and considered that it was foreseeable that the prospective employer would react as it did and that he past employer should be liable for the result of its actions. 

Piers


-----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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