Giving references - data protection and legitimate expectations

Police photo iStockphoto standard 146x219When to give references, and what to say in them, has always been a topic of concern for employers. This is particularly when the reference is provided whilst the employee is or has been subject to disciplinary proceedings. Mark Stevens analyses a recent case on the issue.

The case of AB v A Chief Constable concerned a senior police officer (AB) who, during the course of his service, was the subject of disciplinary proceedings. Prior to the conclusion of those proceedings AB resigned as a police officer meaning that the disciplinary proceedings were never concluded.

Before resigning, AB checked with the Assistant Chief Officer (ACO) whether, if the force were asked to provide a reference for him in the future, it would issue anything more than a standard reference. The ACO confirmed that they would not and when the force received a request from a prospective new employer (which was another public sector organisation), a standard form reference was provided.

When the Deputy Chief Constable discovered that the ongoing disciplinary proceedings had not been disclosed the position was reviewed. Ultimately it was decided that the force had a duty to provide the prospective employer with more detailed information - including specific information about the disciplinary proceedings to which AB had been subject. The force wrote to AB to confirm this decision and advised him of the proposed content of the second reference. AB contested the proposal to send a second reference and brought a claim in the High Court to prevent it being issued.

High Court decision

In the High Court, the police force argued that it had a public law duty to provide an accurate reference to another employer in the public sector. The High Court agreed. It held that the public law duty meant that a reference should be full and frank and not give a misleading or unfair impression. The Chief Constable was, in the circumstances therefore obliged to at least inform the new employer about disciplinary matters.

This was not, however, where matters finished. The Court held that in spite of the public law duty, it still needed to be satisfied that the information in the second reference was compliant with the Data Protection Act 1998 and the Chief Constable's obligation to exercise his public law duties in accordance with public law principles such as the principle of protecting legitimate expectations.

In relation to data protection the Court noted that the information in the second reference was personal data and, as such, the disclosure had to be fair and lawful. Taking into account that providing the second reference would breach a promise made to AB, would be contrary to the force's policy of providing a standard reference and that AB had already resigned before the decision to send a second reference was made, the Court concluded that providing a second reference would be unfair and unlawful.

In terms of legitimate expectations the Court noted that a legitimate expectation can arise as a result of a promise or a regular practice of a public body that an individual can reasonably expect to continue. As a result of the promises made by the police force, the Court held that AB had a reasonable expectation that the force would not resile from its undertaking to provide only a standard reference.

In conclusion, the Court concluded that AB's legitimate expectations tipped the balance of fairness in favour of AB and therefore that the second reference should not be sent.

Best practice

Employers should consider their obligations towards employees and prospective employers when providing references. Whilst many employers will opt to send a short-form reference only, there may be circumstances in which it would be misleading not to include certain information. In addition, public bodies must always consider their public law duties when giving references and it is sensible to adopt a clearly defined and consistent approach.

Mark Stevens is a solicitor at Veale Wasbrough Vizards. He can be contacted on 0117 314 5401 or This email address is being protected from spambots. You need JavaScript enabled to view it..

 

 

Slide background