Traditionally, the law has protected the confidentiality of references, enabling employers to give a candid, warts-and-all view of a candidate to a prospective employer, without fear of the person concerned scrutinising their opinion.
The Data Protection Act 1998 specifically exempts the writer of a confidential reference (and their organisation) from having to disclose it to the individual. Crucially, this means that you have no legal right to claim access to the reference from the referee.
That said, many employers are willing to let employees have access to references provided on their behalf. Certainly you should ask. But what if the employer refuses?
Although the writer of the reference can refuse access, you may be able to obtain a copy from the recipient of it - in this case, the new school. Assuming that the school has retained and filed the reference, the 1998 act obliges them to act “reasonably” in response to a written request for a copy.
Unless there is a “compelling reason” not to do so, the Information Commissioner’s Code of Practice (2002) also says that references should be disclosed. Obviously, what is or is not a compelling reason will vary from case to case. This significantly increases the likelihood of you getting access to your references from the new school. So, if your current employer refuses your request, you can contact the new school.
If you have already been appointed, the references must have been satisfactory. In this case, I would suggest that you ask the referees for access to the references. If they refuse, you can apply to your new school. However, I add a note of caution. A reference should be an honest and balanced assessment of your capabilities. Accordingly, you may find that some comments are less than glowing. If so, you may be tempted to raise your concerns with the referee, but this could prove counterproductive.
There is no statutory entitlement to provide a reference to an employee. It is, if you like, a professional courtesy, given at the referee’s discretion. Were you to take issue with its content, the referee may simply decide to refuse any future requests. So, provided the reference is honest and broadly supportive, it may be wise to leave well alone.
But what if you believe some of the comments to be misleading andor defamatory? In recent years, the law has moved (slightly) in the employee’s favour. A line of cases has now established that claimants do not have to rely on the law of defamation. Instead, they can bring an action for “negligent misstatement” - on the basis that the writer of the reference has a continuing duty of care towards them. The law now provides that (to fulfil this duty) the referee must take reasonable steps to ensure the reference is not only accurate but that it is not demonstrably unfair or misleading.
Perhaps employers who fear claims from former employees might want to arm themselves with a touch of ambiguity. Phrases such as: “Your school will be very fortunate if you can get Mr X to work for you” usually manage to please everyone.
Philip Lott is a senior solicitor with the Association of Teachers and Lecturers, www.atl.org.uk.
