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

Why can’t you put the company details down as a reference on the job application and then it’s up to HR at the new company to chase for the references and sort it out with the old company? I don’t really see that it’s your problem to deal with?

I work in HR so wondering if I can shed some light. As a pp has said, the recommended retention for employee data after a staff member has left is 6 years. They can only keep the data after this if they can prove its for a legitimate reason. So for example, I destroy all data from the file after 6 years except for the name and dates worked - for exactly this legitimate reason - to provide a reference if needed. Obviously your previous employer hasn't taken this approach and has decided to destroy it all. There's not much you can do if that's what they've decided as part of their GDPR approach. Could you instead provide your new employer with a copy of your contract from your previous employer, payslips, evidence from your bank account that you were being paid by them? Perhaps you could instead submit a character reference from someone who knew you during this time period? Does your previous manager still work at the company? If they do it's likely they're under strict instructions not to provide references and that it all must go through HR, if they don't, they may be more willing to provide you one if you have a way of contacting them (I.e. if you're still in touch or on LinkedIn) just a few suggestions maybe but I'm surprised your new employer wants to trawl so far back into your employment history tbh - sounds like a very rigid process.

Also further to the below, it seems they have clearly deleted your data due to their '6 year rule' and probably getting too enthusiastic when GDPR came in and in which case even if you present them with a copy of your redundancy agreement (which I still would if all else fails) there's not much they can do if the data is deleted.

The only thing GDPR requires (that's relevant here) is that information is stored only for as long as it is legitimately needed. The law doesn't tell you exactly how long you need each piece of information - it's up to companies to form their own policies, with the guiding principle being that they need to be able to defend their policy.

But this is being overzealous. The amount of time that information for reference provision is needed is at least a decade IMO...

The law doesn't tell you exactly how long you need each piece of information Exactly. Which is why 6 years is the broad rule of thumb, as that is the legal timeframe for bringing most actions.

Except HMRC who, if they suspect deliberate tax avoidance, can go back 20 years. So I'd expect them to keep basic info for that long. After all, it wouldn't be much of a hassle, just one database sheet with a few entries, easily pulled out from their existing data, no additional work required!

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

No you're not. The internal policy may be that, in response to GDPR, but it does not require you to do that.

due to GDPR we are required to destroy employee files after a period, I thought it was 7 years but it may be 6. As I said earlier, employee files are part of your core data. You don't have to shred it, you just have to have a clear policy that all employees are aware of!

From the ICO, my bold*

While there is no set period of time set out within the GDPR, some records must be kept for a certain period of time in accordance with other legislation. For example, HMRC require payroll records to be kept for three years from the end of the tax year that they relate to.

To ensure its compliance to the GDPR, an organisation must:

• have a clear retention policy for handling personal data and ensure it is not held for longer than is necessary
• have a legal basis for acquiring and/or using any personal data (for more information on legal bases please see the ICO website) that would include core dats and essential business needs
• ensure that all staff are aware of the retention policy and follow it

respond to subject access requests (sometimes called personal data requests) within one month

Your previous employer doesn't have to provide a reference.

As it has been 6 years they have probably destroyed your employee record now under their record retention policy and GDPR. They probably just don't have the info.

My recommendation would be to personally contact a former manager - use LinkedIn and ask someone to provide a personal reference.

6 years is a long time in the employment world though. I'd only be able to give a vague reference for people I managed that long ago.

I would also recommend getting some volunteering in. That will give you a current reference.

Not having worked for 6 years and even with a great reference for 6 years ago is all pretty out of date.

Get some current experience

There are some quirks with references and GDPR, for example you can't do a subject access request on a reference that's been written even though it's your data. That said, what she is saying doesn't make sense, I can only assume she is referring to their retention schedule which will be influenced by data protection. 6 years is a common cut off point for a few reasons, you need to clarify if they have your information.

You could do a subject access request about any information they hold on you (well the more specific you are the easier it will be, otherwise they potentially have to gone through everything, including emails- perhaps ask for data confirming dates you worked there, performance records etc), if they come back with your information it confirms they still have you on file, this should support you in being able to say you worked there for X amount of time to your new employer.

Also, you have a right to complain, does the company have a data protection officer? They should have some form of data protection contact on their privacy notice. If so contact them with your complaint, they should be able to put the HR manager straight in regards to GDPR so the HR person can either comply or give you another reason for not assisting.

OP may have similar problems with volunteering roles too. To be a volunteer at DS’s school you need to have references.

Sorry for not replying individually, I’m on my phone and it does not like scrolling when I’m typing a response.

I realise now how naive I was at the time of leaving but I was in my 20s, I’d never struggled getting a job as I had good qualifications, a good work record for my age when I started and that job gave me a good solid block of professional experience and an extra qualification while I was there.

They definitely said in the consultation meetings and confirmation of redundancy individual meeting that a good reference would be part of the redundancy package. I clearly remember as me and the other person being made redundant laughed about it and said we should bloody hope so after all the work we had put in. I didn’t even think to closely check the paperwork for that at the time, just checked the figures and noted that a reference was mentioned. I have never encountered a problem getting historic references before.

All I thought about at the time when I decided to take time out to be a stay at home mum was the stability of knowing what we were doing so TTC wouldn’t keep being put on hold and whether we could afford it which we could with some good budgeting but it’s getting tighter and tighter.

I had no idea at the time how difficult it would be to get back into employment, even in a less qualified role without recent experience and my most significant and most recent experience being unable to provide a reference.

I am hoping I can manage to get either an informal personal reference or just a basic reference at least confirming that I did work there when I said and that I left due to redundancy. I honestly wasn’t expecting a sparkling detailed reference at this point anyway.

I think I might see if I can get on at a temping agency to build some current experience and go from there. Or go back to college and have a complete change and start from the bottom doing something different that I’d actually enjoy.

I have struggled even getting past the application process so far due to being unable to list my main reference on the application form

I would still list them as the main reference. You need to get through the sift and interview process and be successful, before any new employer will go for references and potentially be knocked back and coming to you for advice/instruction. Don't rule yourself out of the running before that point by omitting them as a referee.

Have you now checked your redundancy letter to see exactly what it says?

MrsLEB speaks sense. A shit reference is much worse than no reference - something all the PPs with 'brilliant' ideas about how to bully your ex-employer into providing one seem to have forgotten. You do not want to piss them off, you want them to do you a favour. The way to achieve that is not to threaten them or bully them.

If personal references are really not allowed, then ask them if they will confirm simply your start and finish date, and that you were made redundant. That's all many companies will do these days anyway, because references are such a minefield.

If they won't do even that, show prospective employers the email from HR, stating that they can't do so because they don't have your records - so that the new employer knows you aren't covering up a termination of contract for other reasons.

I think you are worrying too much about this. References aren't worth much in most industries these days.

Get what you can from them - if it's just confirmation of dates, then that will have to do. And I like PP idea of getting on LinkedIn and trying to get a personal reference.

And for future, and for anyone else: get your reference when you leave.

Oh I’m not going to threaten them. I was hoping that someone would say actually no they can’t do that due to xyz quote from valid legal source. I would have then been able to respond back in a polite but factual way and they would likely have sorted something out then because they don’t like breaking rules.

I did dig out my redundancy letter and despite what they said verbally when I was made redundant about a good reference being part of the package, the only thing it says in the letter is that requests for references should be addressed to head of HR. It is my fault for not checking that at the time but it honestly did not cross my mind that this would ever be a problem.

It also looks like it is as a couple of posters have said and they’ve deleted my employee record due to their policies on holding data since GDPR.

So it looks like my only (probably slim) chance of a reference of any kind from them (they definitely do remember me and know the dates I was there and probably have payroll records somewhere) is if I can get either my manager or supervisor who I am still in touch with to speak to HR or possibly the directors as they still have a bit of sway and see if they can bend the rules a bit and either just provide the basics or allow a personal reference from my manager seeing as its impossible to go through “the official channels” and it’s not like I was aware this could happen as I had no idea GDPR could affect references and it wasn’t a thing when I left. It’s basically down to hoping for them to show goodwill however unfair that is.

Sorry that’s a bit garbled. I hate typing on my phone.

Is there someone who can give you a personal reference from your last job? In my industry (law) HR references say you worked there and that is it. If I want a proper reference, I would have to ask my boss to write a more characterful one - my last boss was very happy to do so for my current job. He/she can always make clear it is given in his personal capacity from his memory of your work as the company has destroyed its records.

Have you tried temping? From my experience, they can be a bit more flexible with references and it will give you some recent experience.

I also agree with others that you can just put their head office details down for the reference, and if there's a problem, deal with that later!

I'm guessing they would argue it's out of date information and so it wouldn't be a current reference about you. There's nothing I can think of in GDPR specifically about this scenario.

@thetoddleratemyhomework unfortunately managers are not allowed to give any references at that company the directors could possibly allow it though which is what I’m hoping for now.

It also looks like it is as a couple of posters have said and they’ve deleted my employee record due to their policies on holding data since GDPR

Presumably not completely, otherwise the response would be "who are you, we don't have any knowledge of you?", so if they are acknowledging that you worked there for that time, then they are still processing your data.

I don’t think they went as far as those men in black gadgets to wipe her actual memory.