P&R seeks data law change on job application references
The States intends to seek a law change over data protection after it was overruled by the island’s data protection commissioner over its approach to refuse to release an employment reference which meant it withdrew a job offer to a candidate.
The Policy & Resources Committee had decided not to release the reference to the jobseeker on the basis that it contained information about other people.
The Office of the Data Protection Authority overruled this and the committee complied, releasing a redacted version.
But the P&R said it was now ‘extremely concerned’ that the legal provisions for the confidentiality around references for job applicants may not be sufficiently robust, and was out of step with England and Wales.
It said this meant that all job references will not necessarily be considered confidential.
It intends to ask the Home Affairs Committee to review the law.
‘The committee’s view is that the ODPA’s current interpretation of the law in Guernsey is too narrow and creates a situation where employers will feel unable to provide honest feedback in a reference, effectively removing any real value of references altogether.
‘The committee believes this has serious implications for recruitment in Guernsey and therefore must be addressed.’
In the case the jobseeker had concerns as to why P&R were refusing to tell them what was in the reference and made a formal complaint to the ODPA.
Following investigation, the ODPA determined that P&R had not given appropriate consideration to the jobseeker’s significant interests.
In its decision, the ODPA said that P&R had not given appropriate consideration to the jobseeker’s ‘significant’ interests.
‘It is reasonable for any jobseeker to understand and validate what is being said about them by a previous employer – especially when that information may impact their ability to get a job.
‘Everyone is entitled to due process, and this includes the ability to validate information about them.
‘The individual was unable to do so in this case.’
The authority added that the second takeaway from the case was that personal data can relate to more than one person simultaneously.
This was particularly common when it comes to opinions, such as those contained within employment references.
‘Where personal data relates to more than one person, and cannot be redacted without losing its context, a balancing test must be undertaken to determine whether it is reasonable to refuse to give the information in response to a data subject access request.’
