The most frequent query is about whether employees can insist on seeing their references. Well, it depends on who they ask.
The employer who gives the reference can simply refuse to let the employee (or ex-employee) see the reference. But the employee may still see it if they ask their new employer. The new employer does have a duty to two people, however – the one who gave the reference and the employee. If the new employer hands over a copy, they may be in breach of a duty they owe the former employer.
At this point, that ever-useful word, "reasonable", creeps in. The new employer can ask for permission to disclose but if it is not given, they must consider if it is reasonable to disclose without consent. The new employer must bear in mind whether they have a duty of confidentiality to the old employer and whether consent has actually been refused, as opposed to not given. If the former employer considered the reference to be confidential, it may well not be reasonable to show it to the person concerned.
Even if the new employer decides not to disclose, they may still have to communicate as much as they can without disclosing the identity of who gave the reference; this is unlikely to be easy, so employers who give references need to be aware that, just because they say it is given in confidence doesn't mean the employee will not see it.
A more unusual query arises on disclosure of details on tenants to third parties. It is highly likely to be a breach, but some registered social landlords may do it unwittingly for the best of motives.
When a housing officer helpfully replies to a local councillor who has written asking why a transfer request has taken so long, the information given may be highly personal. It may refer to health issues. In Data Protection Act terms it may be "sensitive personal data" which can only be released with explicit consent from the tenant. Sensitive personal data includes information relating to health, ethnic origin, religion and criminal offences.
There are times when handing over a list of names and addresses to another body may seem like a good idea – but it isn’t housing is a place of last resort
Ordinary personal data only needs consent, rather than explicit consent, before release. The difference is unclear. But if the tenant gives a general consent at some point to information going to a third party, this may be enough for non-sensitive personal data.
Many RSLs are adopting procedures to deal with this, but not all have. Where sensitive personal data is concerned, councillors and others need to be aware that the RSL can only respond in detail if the express consent of the tenant is given. The fact the tenant has asked for help does not indicate they have given their consent to the release of such data.
This may be an issue for post-transfer associations, where councillors are used to having access to information on people who were council tenants before the transfer. But they are no longer council tenants and consent is needed. Asking tenants to consent generally when they sign up is not enough.
RSLs also need to be wary of arrangements where they are working closely with other agencies. Handing over details of tenants may, in some circumstances, be a breach of the law, and the RSL will have to check for a specific exemption or get consent.
Selling lists of tenants to outside bodies is clearly a breach. There are times when handing over a list of names and addresses to another body may seem like a good idea – but it isn't. Perhaps the RSL wants to make sure its tenants are offered reasonably priced contents insurance, or a good deal on fuel supplies. Both are useful services, but don't hand over your rent roll. Send out the information yourself and let your tenants make first contact, or ask your tenants to sign a form confirming they do not object to receiving such information direct.
Source
Housing Today
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