Writing and Requesting Personal References
The Data Protection Act 1998 provides an exemption for confidential references given or to be given by a data controller for specified purposes, including education, employment or training, from subject access. However, this does not apply when the data controller is the recipient of the reference. Therefore, a reference written by an employee of the University and stored in a relevant filing system would not be accessible to the data subject (the individual about whom the reference was written) if they sought access via the University. If, however, they sought access from the recipient, i.e. a potential employer, the reference may be accessible under the Act. This clearly also applies where the University receives references from external sources, such as previous employers and head teachers. This applies even when the reference is marked confidential.
If a data controller is a recipient of the reference and a data subject seeks rights to that reference under the Act, the data controller must determine whether the referee intended the reference to remain confidential. If the referee did not intend the reference to remain confidential and/or agrees to the release of the reference then the data subject must be given access to the reference.
The name of the referee is personal data and must not be revealed to the subject of the reference without the referee's explicit permission.
If the referee did intend the reference to be confidential, the data controller is legally obliged to take steps to try to conceal the identity of the referee by removing all references, direct or indirect, to the identity of the referee before the document can be released. This may include editing or blanking out parts or sections of the reference which contain information that could lead to the exposure of the referee's identity.
If, having taken all the above measures, the data controller deems that the reference can not be released without revealing the referee's identity, the data controller may apply the exemption provided in the Act and refuse the data subject access to the reference.
It is important to note that:
- If a data controller is the reference recipient, there is no automatic right to apply the exemption and refuse access, even if the reference was intended to be confidential.
- The decision about whether the reference can be disclosed to the data subject, subject to suitable measures being implemented to conceal the referee's identity, is the data controller's and not the referee's.
Recommendations to promote compliance with the Data Protection Act:
It is recommended that:
- Employees of the University providing references ensure that they mark clearly on the reference whether or not they are giving the reference in confidence.
- That references sought by the University from external sources ask the referee to state whether or not they intend the reference to be confidential.
- That when seeking references from external sources the University states clearly that they cannot guarantee that sections of the reference will not be made available if access is requested by the data subject under the Act. This does not effect the University's ability to ensure that the identity of the referee remains confidential.
- That when writing references employees of the University are asked to be mindful of the subject access provisions of the Act and ensure that best practice, as defined by the HR section, is adhered to.
- That when writing references employees of the University are asked to consider restricting identifying features within the references if they wish their identity to remain anonymous. In doing so, the referee provides the data controller with an opportunity to release sections of the reference whilst not revealing the identity of the referee.
Reference writing guidance from the HR section:
Clearly, the Data Protection Act is not the only consideration when writing personal references and there have been a number of well publicised legal cases which highlight the pitfalls of reference writing. As a result of these cases, the Director of Human Resources published guidelines on reference writing aimed at staff within the University. These guidelines were based heavily on guidance made available by Professor Graham Zellick of Queen Mary and Westfield College. In order to ensure that advice given is thorough and consistent, this guidance is reproduced below.
The House Lords has ruled that the author of a reference owes a duty of care to the person about whom it is written, and may be liable in damages to that person if loss is caused through negligence. Hitherto it has been thought that there would be liability only in defamation, and then only if it could be proved that the writer was motivated by malice. Liability may now come about through carelessness either as to matters of fact or in the formulation of opinion. The author of a reference has therefore an obligation to the subject of the reference. The House of Lords did not consider whether the author also has an obligation to the recipient of the reference, although such a liability is likely. If providing a reference, you also of course have a duty of care to the University to act reasonably.
The University's normal liability insurance covers both itself and you as a member of staff of the University against claims arising from a reference. This covers references written by you in the context of your employment in the University, i.e. references on behalf of students, members of staff, etc.. It does not cover references where you are acting in a private capacity (e.g. a character reference on behalf of a friend or neighbour). Such references should of course be written on private not University headed paper.
There are two principal aims of a references:
- To confirm facts - to confirm the accuracy of the statements made in an application: the claim of "experience of admissions work" may be based on three weeks making up enrolment packs as a summer job;
- To provide opinions - to give your opinions as to the candidate's suitability for the post/course in question and his/her potential for the future.
The reference relies on both facts and opinions, and these two should be clearly differentiated.
The following recommended guidelines relate specifically to student references, but the principles are equally applicable to all references:
- If you are likely to be asked to give a reference, prepare in advance - you will normally be asked to act as referee by your tutees, and it is therefore sensible to collect relevant information to make the composition of the reference a relatively easy task. Remember, however, that individuals have the right to see all information you hold on them under the Data Protection Act so make sure it is relevant, not excessive and factual. You may find it useful to ask for a copy of their CV or application to help ensure your information is complete and up-to-date. In this context, the departmental policy on references should be made clear to students, i.e. students should be informed that references will be not be provided unless prior permission has been obtained from the tutor concerned.
- Try to be fair to both the student and the recipient of the reference.
- Ensure that the reference is factually accurate and complete - it is worth checking documental records, and if necessary, consult Student Planning and Assessment.
- Make sure that your opinions are clearly stated as opinions, are based on fact and that you are qualified to give such opinions.
- Do not confuse fact and opinion: "on her performance to date, I would be surprised if X did not get a first class degree" is clearly an opinion; "she will get a first class degree" suggests that the method of classification for Honours is such that the issue is beyond doubt.
- Ensure that the opinions you state are honest opinions based on facts known to you. Do not make statements which you are not qualified to make. For example, "I consider X to be well suited to the post for which s/he has applied, and am happy to support his/her application" is better than "X will be a success in the post of .."
- For this reason, particular care should be taken where you are asked for a reference for a student who is not known to you (for example, if the student's advisor is absent, or has left the College). Do not give an opinion which is not your own, just because the person who knew the student has left. It is preferable to quote someone who has knowledge of the candidate, giving the source of the quote.
- There may be issues on which you are asked to express an opinion on which you have limited knowledge, e.g. honesty and integrity. Here you may have to say, for example, " …I know of nothing that would lead me to question X's honesty…"
- Avoid using ambiguous or coded language, i.e. "X studied here for three years, during which time he has done his work entirely to his own satisfaction" or "you will be fortunate to get X to work for you…"
- Telephone references - The same guidelines apply to references given over the telephone. Do not be tempted to make incautious statements simply because they are not in writing. If the person on the other end of the line makes notes and files on the individuals records, these comments will be available to the data subject. Ideally, references should not be given over the telephone (you do not know how the information will be interpreted and filtered as it passes through the various stages of what the enquirer understood you to say; what s/he jotted down; what s/he reported orally to the panel). However, requests for telephone references appear to be increasing; it is sensible to resist such requests other than in exceptional circumstances, when you should limit the information to facts and follow up immediately with a fax.
- If you are asked to give an unsolicited reference (for a person who has not, to your knowledge, cited your name as a referee), it is advisable to limit your information to the facts, unless the person/organisation requesting a reference can give a clear reason for asking someone whom the candidate has not cited as a referee (i.e. "We always ask for a reference from all employers over the last five years"). Note that the University of Durham's employment policy is now to seek a reference from the current or most recent employer of all short-listed candidates unless they expressly state that they do not wish such contact to be made until a job offer is made.
- A large number of requests for references are addressed to both a student's former college and department, with neither having a full picture of a student's activities. It is advisable in all cases to cross-check information and quote the source if opinion is given about which you have no direct knowledge, e.g. "I am told by the College that …" or "I am assured by her department that …".
- A copy of the reference should be placed on the relevant departmental staff or student file.
- If you are challenged over a reference you have given, refer the matter to the Academic Registrar or the HR section as soon as possible.
NEVER ADMIT LIABILITY AS THIS MAY INVALIDATE THE UNIVERSITY'S INSURANCE.