Confidentiality and access
Data protection legislation provides an exemption for any reference that is provided in confidence for specified purposes, including education, employment or training. This means that if the University receives a Subject Access Request, confidential references about the individual making the reqest, whether created by the University or received from a third party, will be exempt from disclosure.
As a result, if a data subject seeks access to a reference held by the University, the University as 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 can be given access to the reference should the University make this decision. Often the data controller will attempt to contact the referee to ascertain whether there are any objections to the reference being released.
If the decision to disclose a confidential reference is made, 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.
It is important to note that 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 data protection legislation
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.
- References sought by the University from external sources ask the referee to state whether or not they intend the reference to be confidential.
- 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 rights provided to them by data protection legislation. This does not effect the University's ability to ensure that the identity of the referee remains confidential.
- When writing references employees of the University are asked to be mindful of the subject access provisions of data protection legislation and ensure that best practice, as outlined below, is adhered to.
- 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 department
Clearly, data protection legislation 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 of 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 under data protection legislation to see all information you hold on them 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 Academic Office.
- 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…"
- 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 department as soon as possible.
DO NOT ADMIT LIABILITY AS THIS MAY INVALIDATE THE UNIVERSITY'S INSURANCE.