Does GDPR affect your employment referencing process?

published Tuesday, September 17, 2019, 10:45:00 AM British Summer Time

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Anyone in business will have heard about the GDPR. When it was introduced on 25 May 2018, it caused quite a stir and a not-insignificant amount of misunderstanding. Employment Referencing and Employment Screening was already a sensitive area for employers and perhaps even employees. But how has this changed with the introduction of GDPR?

GDPR and Recruitment

Our aim here is to share information on how GDPR may impact your business recruitment and how as an employer you can interpret the regulations with regard to obtaining employee, or potential employee references. More specifically, how you should handle this personal data in the context of GDPR and the DPA (Data Protection Act).

What is the GDPR?

"The General Data Protection Regulation 2016/679 is a regulation in EU law on data protection and privacy for all individual citizens of the European Union and the European Economic Area. It also addresses the transfer of personal data outside the EU and EEA areas." - Source - Wikipedia

The DPA (Data Protection Act) and GDPR contain rights regarding the processing, storage and use of personal data which is held in either a digitised format in say a database or paper records as part of a manual filing system.

Rights to Request References under GDPR

Specifically, with regard to an employment referencing process or employment screening process - Do you need to consider the candidate's rights to see references requested for them from their prospective employers and those that are received from current/previous employers as a result of that inquiry?

Any offer of employment, following the interview process, will nearly always be subject to satisfactory references.

Dealing with Disparities

If the reference received contained disparities declared in the candidate’s application, such as timelines, job role, the reason for leaving and so forth, this may lead to further questioning and or withdrawal of the job offer. In addition, if there is an unsatisfactory record of absence, behaviour or a poor disciplinary record, this would more than likely prompt withdrawal of an offer of employment. Most candidates would not question this, but they do have the right to raise a subject access request under the Data Protection Act 2018.

References Given in Confidence - What do you do?

The reference you are provided has been given in confidence and without their consent for it to be disclosed to the Candidate, making the situation extremely sensitive. What do you do?

The Data Protection Act 2018 makes provisions for you, the recipient of the subject access request to restrict the content of that reference being disclosed along with being able to withhold the provider of the reference personal details such as their name and position.

Exercise Caution Disclosing References

If you decide to disclose the contents of the reference, you should exercise caution, as this risks the identity of the reference provider and could result in an approach by the Candidate to that individual. The Candidate may also decide to extend their subject access request to all personal data held.