ACCESS TO PERSONNEL FILES, DATA
AND EMPLOYMENT REFERENCES
NUT BRIEFING FOR MEMBERS
March 2011
This factsheet summarises teachers’ basic rights to accessing personnel files and
data, including references, held by their employers. It outlines steps that may be
taken to address issues that arise from trying to access information or in
addressing inaccuracies contained in that information.
DO I HAVE THE RIGHT TO SEE THE CONTENT OF MY PERSONNEL FILE?
The Data Protection Act 1998 allows for workers to see the content of their personnel
files and has extended pre-existing access rights to computer-held material over to
paper files. This statutory right extends to information held at school and by the LA and
may include:
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sickness records
absence records
discipline records
appraisal records
reported accidents
THE RIGHT TO ACCESS A REFERENCE
Can I obtain a copy of the reference?
A reference is confidential between the prospective employer and the referee, but may
be disclosed. It may be hard to obtain a copy but some authorities do work on the basis
that it is good practice to share the content of references with employees before sending
them. After all, nothing within the reference should be unexpected to the employee.
The Data Protection Act 1998 provides a general duty to make any information held or
shared about an individual or ‘data subject’ available. The Act does make an exception
with respect to references asked for ‘in confidence’. Although the reference may disclose
the referee’s identity, this can sometimes be concealed. There is no obligation to
disclose information that identifies a third party.
Do I have the right to see a reference before it is given?
The employer is under no obligation to make available references that you have
accepted as confidential.
However, the employer should comply with a request to see a reference written by a
former employer and contained in your file, unless there are good reasons why access
should not be given.
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Do I have the right to see a reference that has been given?
If your employer will not let you see the reference, there is nothing to stop you from
asking the recipient for a copy.
How do I get a copy of my reference from the recipient?
You must make your request in writing and provide sufficient information to allow the
recipient to identify you. A request by email is fine.
Your request should receive a reply within 40 days, or if the recipient is unable to meet
that deadline, as soon as s/he is able.
What if the recipient refuses to let me see my reference?
If you have asked for a copy from either your employer or prospective employer and
been denied, contact your NUT division or association.
What if my employer lets me see the reference but it is factually inaccurate?
Your employer must rectify the error before submitting the reference, so long as you
bring the matter to his/her attention.
If the reference has been submitted already but the error is trivial (e.g. your name is
misspelt) then you can tell the recipient yourself.
If the reference has been submitted and the error is likely to cause prejudice (e.g. you
are said to have had more sick days than you did in reality) then your head or the author
of the reference (if they are different) should write to notify the recipient of the true
position.
Your employer owes a duty of care to the prospective employer, and to you, as the
subject matter of the reference. A reference must be true, accurate and fair. It must not
contain an unfair or misleading impression overall, even if any discrete components are
factually correct. An inaccurate or unfair reference may be challenged by either the new
employer, or the subject of the reference.
What can I do if the reference is less than flattering?
In most cases, there is very little you can do other than consider using another referee.
It has to be accepted that a reference is not always going to be a glowing testimonial. It
is, after all, the opinion of the referee but it should be reasonably objective.
Contact your local NUT should you consider the author has given you a bad reference
out of spite.
You will need to prove that what has been said about you is both false and motivated by
spite.
It has to be obvious to someone who knows neither of you that that the author wrote the
reference maliciously.
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It is not the easiest of problems to address nonetheless, the Union has the experience
and expertise to tackle these cases and to do so in legal terms if necessary.
Is a bland reference a bad reference?
A bland reference is not necessarily a poor reference but it may require the prospective
employer to do some investigation. They may ask for specific details or for a reference
from another referee. Many employers provide a purely factual reference confirming job
title, name and date of employment, thus avoiding the possibility of any action being
undertaken against them.
PRINCIPALS AND REQUIREMENTS OF REFERENCES
At what stage will a prospective employer ask for references?
Prospective employers will usually obtain references when you are shortlisted for
interview, so that they may raise any concerns at the first interview. You may object to
your current employer being contacted at this stage, but it is likely the prospective
employer will prefer to see a reference before conducting interviews. In any case, if
successful, you should be offered a conditional offer of employment, conditional on
receipt of a satisfactory reference.
Who will write my reference?
Your reference will probably be written by your line manager or Head teacher, as they
have the most direct experience of your abilities, skills and work. The referee may also
be someone other than your most immediate manager if the prospective employer is
requesting confirmation of a particular area of specialisation. If you are a leadership
teacher it may be necessary for the local authority to provide a reference as well.
I am trying to obtain my first teaching post. Who will be my referees?
You will usually have to provide two referees. One referee should be able to comment
on your teacher training experience - someone who can comment on your academic
ability and your teaching performance. Some colleges and departments specify which
tutor or other person should be named as a referee. You may also wish to name a head
teacher, teacher or head of faculty from one of your placement schools. You should ask
potential referees for their permission before providing their details and inform them
each time you are applying for a post, so that they do not unexpectedly receive requests
for references.
What will a prospective employer ask for in a reference?
The referee will usually have to state:
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the nature of their relationship with you;
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your job title and salary;
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current job description;
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length of service in current post, the school and local authority;
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reason for leaving;
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whether you have the ability and suitability for the prospective post;
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whether you meet the person specification;
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whether you are suitable to work with children:
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they must provide specific details on their concerns;
the number of days absent from work through ill health:
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reasons for absence or a description of ill health or disability issues is
categorised as ‘sensitive personal data’ under the Data Protection Act
1998 and cannot be disclosed without your express, written consent.
A reference may also include detailed information such as:
“Your knowledge of the national curriculum, staff management and
development, use of ICT and new resources, classroom management,
your involvement and interaction with colleagues, pupils, governors and
parents, your initiative, how you deal with change, your decision making
and communication skills and your educational vision.”
A referee may indicate if they believe you need development in a particular area, as long
as you are aware of this need. Issues relating to development needs, performance or
conduct should have been raised and recorded beforehand.
A referee is not obliged to comment on areas upon which they cannot or do not wish to
comment on.
Will the reference include information relating to Complaints or Grievance,
Harassment or Disciplinary proceedings?
In 2007, the DCSF produced a document titled “Safeguarding Children and Safer
Recruitment in Education”. This states that your employer should refer to substantiated
complaints made against you, investigations or formal warnings (including those that are
outstanding), provided you are aware of these issues. This is particularly important if
any of these issues relate to the safety and welfare of children or young people, or
behaviour towards children or young people. However, the NUT believe only live
warnings should be included, unless they relate to child protection issues, and that
unsubstantiated allegations should not be referred to.
Referees should explain how a conclusion was reached on resolved matters and what, if
any, sanctions were imposed.
If you leave during an investigation your employer should say that when you resigned
you were under investigation following a complaint or an allegation of misconduct. The
employer should not offer an opinion regarding what the outcome might have been had
the process been completed. Prospective employers should consider any disciplinary
action or allegation in the circumstances of the individual case. Issues will cause
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concern if they are more serious and recent, have not been resolved satisfactorily, or if
there is a history of repeated concerns or allegations over time.
I am worried I will receive a bad reference, what should I do?
A selection decision will not rest entirely on the content of a reference. References are
obtained once the application process has got underway, so there may be more than
one interview and other opportunities to explain the content of the reference.
Will the prospective employer contact the referee?
The prospective employer may contact the referee for more detailed answers or
clarification if they wish. It is best practice for contact to be written as verbal information
provides the risk of misinformation or misinterpretation. What might have been a
positive reference may be tarnished with comments that are made verbally and ‘off the
record’. The reference will be compared against your application form and if there are
discrepancies these may be taken up with you.
What happens if the prospective employer is not happy with my reference?
A prospective employer will usually offer a conditional offer of employment, conditional
on receipt of satisfactory references. Therefore, the offer of employment can be
withdrawn if the reference indicates you are highly unsuitable for the post. If you started
the new post before your new employer received any references, the requirement to
obtain satisfactory references may no longer be a condition of your employment, so that
you may have a right to remain in post.
Is there an obligation for my employer to provide me with a reference?
There is usually no obligation to provide a reference. It is accepted practice however to
provide a reference as refusal to do so could result in adverse consequences for the
employee.
What is an Open Reference?
Usually starting with the phrase, ‘To whom it may concern’, open references are often
the product of a compromise agreement and are unlikely to include any adverse
comments. However, the referee has no control over an open reference as to who it is
given and its proposed use.
What is a Personal Reference?
A personal reference is written from a personal perspective rather than an employer’s. It
should not be written on a department/schools headed notepaper.
Usually
complimentary, they are not always effective in a selection process.
What should I do now?
This document is intended as a brief overview; any individual concerns should be
referred to the NUT locally or, thereafter, your NUT Regional Office.
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Members are also advised to refer to the following:
Information Commission: “Subject access and employment references”:
www.ico.gov.uk/upload/documents/library/data_protection/practical_applic
ation/references_v1.0_final.pdf
DirectGov:
www.direct.gov.uk/en/Employment/Employees/StartingANewJob/DG_100
26703
Chartered Institute of Personnel and Development:
www.cipd.co.uk/subjects/recruitmen/selectn/references.htm
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