Refused reference due to GDPR. Help.

[Fluffyscamp]

I’m wondering if anyone with knowledge of employment rights and GDPR can help.

I was made redundant in 2013 from the company I had worked at for 6 years. Perfectly amicable and purely down to the team relocating and being reduced in number. Me and the only other part time staff member were the ones to go.

At the time DC1 was about 18 months old and we were planning to TTC. We decided that we could afford for me to be a SAHM until DC1 and our planned future baby (DC2 who followed in 2015) started school.

DC2 has just started in reception and I have been applying for jobs. When I was double checking the contact details for my references I was informed by the person in charge of references at my last job that they could no longer provide me with a reference due to GDPR as it has been 6 years since I left.

The employer previous to this one is happy to provide me with a glowing reference, however the lack of reference from my last employer is a massive stumbling block as it is my main source of experience and progress.

I was told at the time of being made redundant that a good reference would be part of my redundancy package and I do have a signed copy of my redundancy letter which briefly mentions that should I need a reference it should be requested in writing from the head of HR.

Does anybody know whether I have a leg to stand on contesting what they have said about GDPR, at the very minimum they are still well aware of my dates of employment at the company so could still provide a basic reference.

Sorry to put this in AIBU but I’m desperate.

Thanks in advance

Yes, you do have a leg to stand on. They’re talking bollocks. Contact their head of HR directly and copy the MD/Chief Exec in.

From the employment side you could speak to ACAS. You could check with the Information Commissioners Office for GDPR regulations.

What a load of tosh! Of course they can give you a reference.
Is there a Head of HR you can speak with?
The reference will probably be simple facts - dates, reason for leaving etc. But there is absolutely no reason for them to refuse you a reference on the grounds of GDPR

It’s the head of HR that I spoke to and she told me GDPR says no.

Call Acas.

They clearly don’t understand GDPR

are you in a union?
call bullshit - go to the CEO and enclose a copy of your redundancy agreement.

OP have they deleted your employee file , due to GDPR stating they shouldn't be storing info they don't need ?

What a load of bollocks. GDPR makes no such provision.

The GDPR excuse is bollocks. She sounds like she hasnt a clue.

It’s your data. You are allowed to request it. Keep pushing.

They can probably provide a reference but I imagine the difficulty is that it may be difficult for them to be factual etc as legally speaking, they have to destroy previous employees details after a certain amount of time.

I'm confused

What's their reasoning?

It's YOUR data, surely?

It will be because of the retention period. It sounds like they’ve deleted it because you left over 6 years ago.
I don’t know the rights and wrongs of this in terms of HR but where I work we can delete customer data 6 years after they have finished their relationship with us.

They are talking rubbish. GDPR is no concern if you specifically ask them to share a reference with your new employer.

And if a good reference was part of your redundancy package, they have a legal obligation. Email the Head of HR, explaining the issue and say you don’t want to have to engage a solicitor but if necessary......

Ask the head of HR to cite specifically which bit of GDPR says no. She won't be able to.

It is my understanding that the standard retention period for your HR / employment information is 6 years after the termination date.

It may simply be that the company does not hold your information / data anymore.

I think they destroyed your employee file as it's been 6 years, or someone in HR can't be bothered to write references for you any more.

'Because of GDPR' doesn't wash - ask for more details / to speak to someone else.

Hi OP, obviously this is resolvable as detailed by several PPs.
But my first port of call would be to call the guy back and to ask him which section of GDPR legislation he is refusing to give a reference under. Ask for this in writing and advise that you will be forwarding his response on to the data commissioner (ICO).

Companies are under no obligation to provide a reference of course but as you have it in your severance deal you would have legal recourse no doubt, however I have no idea what form this would take.

I assume it is to do with retention of data

As someone upthread said, due to GDPR we are required to destroy employee files after a period, I thought it was 7 years but it may be 6.

So it’s not inconceivable that they can’t provide a reference as they have no evidence you were there. but it Seems a stretch that there’s nobody left there that can at least confirm you worked there and they will have payroll records from up to 7 years ago that should confirm.

So, GDPR could be a truthful reason if not necessarily a valid one to refuse the reference

I expect that they've taken the decision to delete all former staff data after six years. They can't provide you with a reference if they have no record of you working there.

They're not obliged to provide a reference unless you have an agreement that they will. If your agreement states they will provide you with a reference then they should. If your agreement states "reference requests should be sent to..." then that doesn't form an obligation to provide one. What exactly does your agreement state?

Don’t do what @SellmeyourMLMcrap

Not only is it passive aggressive and not really the best way to get them to help you. And they will just point you to the very clear GDPR guidance that says employment records and redundancy files must be destroyed after 6 years

They may not have kept your employment file but they certainly should have a record of your employment, and your reason for leaving which is all they need to provide a reference. To suggest otherwise is a nonsense and flies totally in the face of GDPR which simply says that they have to a reason to retain any data.

Don't they have to keep records of workplace accidents for 40 years or something?? What would they do in that instance!

What they will have is a Data Protection Officer who should be properly trained. Don't bother with the MD/Exec, find out who that is and go to them and if you have no joy there go to ACAS.

Honestly. GDPR isn't THAT hard, it really is common sense!

6-7 years is normal retention policy for previous employees, but I would have thought they would be able to give at least employment dates, and perhaps your previous manager can give a personal reference?

As PPs have said, it is good practice to destroy employee records 6 years after employment ends, unless there is a particular reason to retain them. So the head of HR is probably correct that they don't have your records any more. There is however nothing to stop an individual who remembers you providing a reference, though they would probably want to caveat it to say that it is based on their recollections, not your employee records. This is what I would be requesting, in your situation.

Remember that you are asking a favour, so ignore some of the advice on here. You don't want to come across as a passive-aggressive arse when you are trying to get them to say what a great person you are!