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Rescinding offer of employment

Hi all, 

On the basis, no question is a silly question here goes....

I've rescinding a conditional offer of employment for an applicant due to receiving an unsatisfactory reference. The applicant has now requested to see the reference. 

As we've not legally employed the individual in question, am I still obliged to show them the reference or not?

Any help would be much appreciated.

Thanks, 

Yasa

3014 views
  • Hi Yasa

    I read something on this recently which was perhaps on this forum so worth a search!

    The obligation currently sits with the employer giving the reference to provide a copy if requested so you could direct the applicant to make the request to them. Equally though, under GDPR, should the applicant make a subject access request to you to disclose data you hold on them, you would be required to disclose the reference.
  • In reply to Caroline:

    I have to disagree that references given in confidence have to be disclosed - see eg

    www.xperthr.co.uk/.../

    (and that exception under Schedule 2 of the 2018 DPA specifically says it applies to references for prospective employees too)

  • Hi Yasa

    Under data protection legislation, applicants with rescinded offers or employees do have a right to see and be provided with a copy of any reference related to themselves. As long as the offer was rescinded for legitimate and non-discriminatory reasons as backed up by the reference, there should be no problem with this.

    But for clarity, what was the nature of the unsatisfactory reference - was it to do with experience, qualifications or performance? When the reference was taken, was it over the phone or by email?
    Sometimes when references are taken via email only, they can be "one dimensional" but when taken by phone you can get further context by listening to the tone of voice, language used etc.

    Hope that helps.

    Fionnuala.
  • In reply to David:

    Hi David

    Is it not the case that only references given explicitly in confidence are exempt? So it would depend on the wording within the reference request?
  • In reply to Fionnuala Kilcoyne:

    www.stronachs.com/.../351-how-to-deal-with-employer-references-post-gdpr

    - confirms too that confidential employment and prospective employment references can be exempted.
  • In reply to Caroline:

    Hi Caroline

    As far as I know, there’s nothing in the current statutes or in case law to define what ‘in confidence’ means in this context but I’ve rarely if ever issued or received an inter-employer reference request that didn’t state somewhere that it was confidential or in confidence etc. And even if it didn’t, one might I think easily argue that in these circumstances it was implied anyhow.
  • In reply to David:

    My curious brain therefore wonders how an applicant who has had an offer rescinded on the basis of an unsatisfactory reference manages a situation where they believe the reference to have been inaccurate if they are never able to review the content? You just have to hope the prospective employer has asked sufficient questions of both the applicant and referee prior to rescinding the offer.
  • Hi Yasa,

    I had this situation recently, we retracted a job offer based on unsatisfactory references. However, we have a clause in our contract which stipulated that all our offers were subject to satisfactory references - do you have this?

    We then advised the candidate that should she wish to see the reference, she would have to request it. I can't remember whether she ever did or not, though.
  • Hi all,

    Thank you for the advice.

    I've advised the applicant they would need to request this information from the previous employer in the 1st instance and come back to me should they require any further assistance.

    Should the applicant come back to me, I'll advise that they need to make a subject access request and we'll provide the reference.

    Just to provide some further clarification, a proforma reference request was sent to the applicant's previous employer. with some generic questions such as relationships with student/staff, punctuality, flexibility, etc, which all came back as requires improvement with the reason for leaving being failed probation.
  • In reply to Yasa:

    As David has said you do NOT have to disclose the contents of a reference. It doesn't matter whether the reference was stated to be "in confidence or not. A reference is a reference regardless.

    However, if I got a poor reference for an otherwise potentially good candidate, I would tactfully contact the reference giver and have a chat about the reference. Don't forget that staff can give many years of faithful service and should not necessarily be judged by one event. It may simply because they didn't get on with a new manager, grew disillusioned with their work and so on.