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 was hoping that someone would say actually no they can’t do that due to xyz quote from valid legal source

OP, they are citing GDPR, so the onus is on them to show you where the GDPR prohibits references being given (hint: it doesn't).

I agree with PPs that they've probably been overzealous with deleting files when GDPR came in and it's likely that they have no record of you having worked there now.

I would write to the board enclosing your paperwork and explaining the situation and that you just need a basic reference (making it clear that this was your last employment and is therefore an important reference to you) and hope you can appeal to their humanity as opposed to the batshit HR team.

You can log into your personal tax account online, it will basically show how long you worked there as all your salary payments would be recorded so would be concrete 3rd party evidence of your past employment. I appreciate that you may not want to share salary information with your employer though, you could probably redact that.

To be honest, I don’t think your reference from 6 years ago is that important to future employers as you have had a very long career gap. Therefore any personal anecdotes may not necessarily be accurate after 6 years. You are sort of starting again unfortunately.

I think your best bet is angling for a date reference.

I agree, appeal to their personal nature and tell them that without even a basic working dates reference, you are struggling to find a new job.

Actually OP, I would make it the new employer's problem.

You have the old HR contact details so put them down on the reference form, and let the new employer contact your old company.

At least then, the new employer knows it's not you making nonsense excuses, and they can deal with how they're going to take up references and deciding what they're comfortable with.

They might be happy with HMRC proof of your employment along with a personal reference, for example. But if your old company has gone on a batshit GDPR shredding spree, don't let that stop you applying for jobs!

Firstly GDPR.

Most employers, and especially those who have an idea of the GDPR will only retain information for the purpose that it is used. They will most likely have software that they use to maintain their HR records and in line with their retention policy will either delete, pseudonymise or anonymise your data. This action should not be able to be undone and is part of the Data Protection by Design and Default requirements of the Data Protection Act 2018 incorporating the GDPR. Therefore they may not actually be able to give you a reference because they can't find you on their system.

Secondly Reference
If they have not done the above, under the Data Protection Act 2018 they can provide you with a reference. It must be a reference of facts, but the old employer will require you to sign a consent to share form with your current employer who will forward it to your old employer. Normally these references only confirm your job title, start and end times, parental leave and sickness details to ensure continuity under PL requirements and SSP usage rules.

Your old employer does not have to provide a reference and is not legally obligated to do so. You may have a redundancy letter saying they may provide a reference, but since you have been gone from them, their retention period of 6 years may supersede this as they may be in line with the Limitations Act 1980.

If you have your Redundancy letter, submit this to your new employer, this should suffice as some employers don't actually review your work experience, unless it's NHS, Schools or other Professional jobs, but CPD records should suffice for periods longer than 6 years for jobs where your part of a professional body.

OP did you sign a Settlement/Compromise Agreement as part of your “redundancy package”?

If so and the reference was agreed as part of that, they’d be in breach of contract by refusing to provide it!

The whole point of GDPR means you CAN request this whenever you like. She is an idiot.

Was about to post, then realised that Stevenjones217 had said exactly what I was going to say ( but much more eloquently than I would have done!)

Ask to personally speak to their data protection officer and submit a subject access request to see what data they still hold for you. At least you’ll know if you are still on their system.

Absolute tosh. Given that they are quoting Gdpr, I would go back and request all information they hold as a subject access request. They will then have 30 days to respond and give you all they hold on you. Other option if you are happy your hr record is good is to use your right to transfer and force them to send your old HR records on to your new employer. Failure to comply with either of those is a breach of Gdpr and you can report them to the ICO for failing to comply. The threat of someone understanding their rights is usually enough to get it sorted

use your right to transfer and force them to send your old HR records on to your new employer.

That doesn't apply to HR records.

If the company has deleted the data, regardless of whether their interpretation of GDPR is correct, then they don't have the data to write a reference from. They can't make it up.