It is common for employers, as part of the recruitment process, to seek job references from the successful applicant’s current employer and one or more former employers. While employers are generally under no legal obligation to provide a reference, if they do so, they need to ensure that what they say is factual, accurate and not misleading, otherwise they may risk legal proceedings being taken against them. Employers are also subject to duties under the Data Protection Act 2018 with regard to the storage of references, how they are used and when they must be disclosed.

Medical information sought and obtained for recruitment purposes is also affected by the provisions of the DPA and such information must be treated in strict confidence. Requirements for job applicants to undergo a medical check (or complete a medical questionnaire) are also governed by the Equality Act 2010.

Subscribers should note that, as a result of the EU’s General Data Protection Regulation (GDPR), data protection legislation has significantly changed with effect from 25 May 2018. The Data Protection Act 2018 (which replaced the Data Protection Act 1998) has strengthened individuals’ rights and required organisations that collect and process personal information about individuals to be more accountable and transparent.

This topic looks at the obligation to provide a reference and the duty of care to the subject of the reference and to the new employer if an incorrect or misleading reference is provided. It also looks at pre-employment medicals, candidates with disabilities and the right to refuse to undergo a medical.

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