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

I can see this 6-year thing being quite a disadvantage for people who've taken a career break. And most of those will be women.

It's been a long time (12 years) since I was last job hunting, but back then an awful of jobs wanted 2 references, both from previous employers.

I can see this 6-year thing being quite a disadvantage for people who've taken a career break. And most of those will be women

Yes. As far as I understand it (and I may not!) It's only since GDPR came in that companies have a duty to inform and gain consent for NEW data handling. If a company acquired and held personal data prior to this, it can continue to be held on the same terms as before.

But happy to be corrected.

Even if they still have the records they can’t be forced to give you a reference regardless. They can decline without penalty.

Thanks for your responses.

It was actually a couple of months short of 6 years since I left when she told me they could not provide a reference so I might stand a chance of getting them to relax their extremely strict stance on references from managers or directors if I can point out that they should technically have still had my information on file at that point. The payroll information is also useful.

I just need to figure out who I can actually manage to speak to for help at the company now. They are ridiculously hard work to deal with as they are a massive company with really really strict rules on who can deal with what and many many hurdles to actually getting through to anyone useful even if you work there 😖.

GDPR shouldn’t be an issue.
If you were asking a reference about someone else, the yes. But it’s about yourself so is t an issue.

It’s more likely that they have no idea about what sort of reference to write 6 years on.

Some companies will limit what they put on a reference to how long you worked there and how many days you had off.
Your better going to your former manager and see if he’d give you a personal reference

They are misinterpreting GDPR. I assume the angle they are down is related to retention periods for data - However if they have a record of you being employed (which they much have hence corresponding with you on the matter) then they can provide a reference - even if it is just basic dates. Submit a Subject Access Request (SAR) they HAVE to legally respond with 30 days with ALL data they have on you. They are an absolute pain to completely with so it's in their interests to just provide what you actually want/need.

All worth contacting the ICO - Information Commissioners Office for some advice. They regulate the enforcement for GDPR

Check if your new employer will accept proof of continuous employment- most refs are just a confirmation of dates employed. Then try and evidence this trough pay slips, P45, P11d etc.

Don't be waving around SARs and mentioning the ICO lol. those bodies are not interested in someone chasing a reference

It’s in the company handbook and everybody’s contracts that personal references from managers are absolutely forbidden and they must all go through the head of HR.

I’m going to have to see if I can get in touch with my old manager or supervisor who can actually manage to speak to HR or the directors (who are surprisingly lovely once you do actually manage to speak to them) and see if there is any way round it.

They should be able to tell from their payroll records what date you started and left and maybe even your job title or pay grade. This should be enough for a reference for a job left 6 years ago, especially if they are willing to confirm in the reference that they no longer have the records to be able to say any more than that.

They don't have to help you though so be nice.

Erm! They have massively misinterpreted data protection law and the ICO might be interested enough to put out an employer's info sheet.

Staff data is core business, not something they bought or sold or gained for temporary measures. Yes, it would be good practice to delete details but absolute madness to delete basic employment data - HMRC don't stop at 6 years, for example!

HR should be able to produce a simple reference - position held, salary, dates, for example.

But they don't have to provide a reference at all.

Equally they can't use GDPR as the basis for their refusing to do so. "We don't want to" is all they have to say!

Most accounting records only have to be kept for 6 years so I assume it is possible that they have deleted your records.

If you have been away from the company for 6 years I can’t see a problem with a manager giving you a reference, but it would be more a personal one rather than an employer one.

I have struggled even getting past the application process so far due to being unable to list my main reference on the application form. When requesting feedback from places that I have applied to they have said that due to the number of applications the ones without references listed from at least the last employment are automatically discounted.

If I get no luck with sorting out a reference of some sort from them I think I will try and speak to each potential employer in person to explain and ask whether proof of employment would be adequate in place of a reference before I apply so they can tell me what to put on the form in place of the contact details. Luckily I keep everything paperwork wise until I’m 100% certain I won’t need it anymore, so I have a copy of my contract from starting at the company and a copy of my redundancy letter plus the certificate from the professional qualification which I got whilst I was working there.

You can retain records for limited times. There are recommendations for certain records ranging from 3 months to years. Copies of DBS checks eg must be destroyed after the retention period.
If they have set a time limit of perhaps 6 months for personal data then that is their policy.

"I think I will try and speak to each potential employer in person to explain and ask whether proof of employment would be adequate in place of a reference before I apply so they can tell me what to put on the form in place of the contact details. "

No, no need for this. Most jobs will only contact your referees once you've been offered the job so you can explain the situation at that point.

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

This is ridiculous and since a reference was a part fo your redundancy package what they should have done was write the reference "to whom it may concernt" at that time. They presumably didn't put a time limit on requests?

GDPR is being used in much the same way "health and safety" is being used in many companies - an excuse to not do what they don't want to do or are not capable of doing.

Fluffy, can you clarify exactly what your redundancy agreement states about references? Telling you who to address a request to is not the same as promising to provide one.

If you were going for a teaching position they ask for references before interviews

An employer has always had the right to refuse a reference (unless part of an agreement/compromise/redundancy) so the GDPR is a red herring.

I would take a photo of your redundancy doc confirming they need to provide you with a reference and ask them to help you understand why they are breaching this contract.

Good luck.

I think a lot of companies destroy staff records 6 years after the person has left but they might still be able to confirm dates worked using their HR system or similar (this is what my company do as far as I'm aware). Other option is to contact your old manager or a colleague directly and ask for a reference (they might be allowed to give a personal one?) GDPR does not specify retention periods but does state that personal information should not be held longer than necessary, 6 years is often used as that is the period for the Limitation Act (i.e. a legal case being brought about something).

Even if they still have the records they can’t be forced to give you a reference regardless. They can decline without penalty.

I've read that the employer has to behave consistently, otherwise it could be viewed as discrimination. I may have misinterpreted it but I assumed it means, whilst not obliged to give one, if they generally provide them, they shouldn't refuse for certain individuals.

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

No, only in limited circumstances such as an employee under health surveillance or someone who has been exposed to a hazardous substance reportable under COSHH. Most accident book records only have to be kept for 3 years unless someone involved is under 18.

I would take a photo of your redundancy doc confirming they need to provide you with a reference and ask them to help you understand why they are breaching this contract.

^^ this. If they still refuse, I’d consult an employment lawyer.

What a pain. Have you pointed out to the HR head that a reference was part of your redundancy package?