Do employers have a duty of confidentiality to employees?

DullGreyGuy

prowla said:

Under GDPR a company can only keep data for legitimate reasons, which certainly don't include malicious references; you also have a right to be forgotten. You may wish to read up on that.

Not much point reading up on it... there are a slew of reasons why a former employer is going to have to keep records of its former employees for at least 6 years such as defending a future unfair dismissal case or any investigations by HMRC etc. 

The right to be forgotten is really limited in its application and will only apply between parties with a relatively light relationship. 

Savvy_Sue

Secretary94 said:

An entire section of the Settlement Agreement said that I had to keep my work, my dismissal and the pay-out completely confidential.

When DH had a settlement agreement, the terms weren't the same (he negotiated what would be said in any reference, for example), but there was supposed to be mutual confidentiality, including about how much he'd been paid off with. 

Then they realised that at least some of the information was going to have to go in their Annual Report and Accounts (they were a registered charity). Cue an awkward phone call explaining to him that all the supposedly confidential details would now be a matter of record. 

I am not sure you were particularly well advised by your solicitor, but equally I'm not sure you'll be able to do much about it now. The old employer has nothing to gain by changing the terms of the agreement. 

Marcon

Secretary94 said:

I don't think it is as easy as that Hoenir. 

New employers will see on my CV that I worked for Company X for a few years and could just take the liberty of pinging over an email to Company X to check that I actually worked there.   I cannot stop them. 

What I need to know is whether Company X is legally obliged to ignore such a request, or just confirm the dates I worked there (but nothing else), or whether in law there is nothing to stop them sending over copies of warnings and my dismissal letter.

The web is not helpful - what I need is a court decision or actual law which I could rely on relating to employee confidentiality.

You won't find a court decision or actual law, since the answer will often depend on what was included in a particular settlement agreement. 

You and your employer agreed that they would not provide a reference (a curious thing to agree - normally you agree what form a reference would take, such as 'dates of employment only'), so it is likely they will simply ignore any request for one. 

As for sending over a scanned copy of your file...why on earth would they, particularly given the content of the agreement?

Your problem is going to be explaining to any new employer why you left, so I'd focus on that.

Hoenir

Secretary94 said:

Thanks HampshireH

If there is a fixed law which restricts employers sending out copies of warnings/dismissal letter etc then I intend to contact the firm that sacked me with a nice letter asking them for a reference and trying to agree its terms and suggesting that because of the law restricting them on employee confidentiality it would make sense to agree wording now.  

I would ask for a reference giving dates of employment and that I worked as a team secretary in sales and even that I was dismissed but didn't give a reason - I can handle the whys that with new employers.

I just need some assurance that my old company isn't going to send out everything they have in the files.

I'd expect your ex-employer to ignore your request. They'll have no inclination to reopen the conversation with you. Having concluded the process with a legal agreement which you have agreed to. 

Likewise if your new employer requests a reference directly. As there's no legal obligation to respond to it. 

Your personnel file will have been closed and in due course will be archived in a secure place. Until such time as it's destroyed. 

You need to move on and leave the past behind. Rather than continually looking back over your shoulder. 

Secretary94

Thank you everyone – I think I have an answer to this now.

 

My only concern was my ex-employers being sent a reference request and replying to it in a spiteful way – just detailing why they had dismissed me.

 

The law allows my ex-employers to remain silent – which is fine by me – or if they provide a bad reference it cannot be inaccurate, misleading or discriminatory (Equalities Act 2010).  So if they only mentioned my dismissal and not the years of service I gave them (including good performance reviews) then that would be misleading and I could start a further action against them. 

 

I am told that the Settlement Agreement only deals with complaints up to the date of the Agreement and not anything which the company does afterwards.

 

So, I  probably will write to my ex-employer’s and tell them that they might get reference requests and that (1) they probably should not respond to them but if they do (2) then their reply might be defamatory and/or in breach of the Equalities Act 2010 and then invite my ex-employers (if they want) to agree some wording to a basic reference confirming when I worked at their company and at what job role etc. 

 

 

Undervalued

Secretary94 said:

Thank you everyone – I think I have an answer to this now.

 

My only concern was my ex-employers being sent a reference request and replying to it in a spiteful way – just detailing why they had dismissed me.

 

The law allows my ex-employers to remain silent – which is fine by me – or if they provide a bad reference it cannot be inaccurate, misleading or discriminatory (Equalities Act 2010).  So if they only mentioned my dismissal and not the years of service I gave them (including good performance reviews) then that would be misleading and I could start a further action against them. 

 

I am told that the Settlement Agreement only deals with complaints up to the date of the Agreement and not anything which the company does afterwards.

 

So, I  probably will write to my ex-employer’s and tell them that they might get reference requests and that (1) they probably should not respond to them but if they do (2) then their reply might be defamatory and/or in breach of the Equalities Act 2010 and then invite my ex-employers (if they want) to agree some wording to a basic reference confirming when I worked at their company and at what job role etc. 

 

 

That is a bit of a stretch! Yes, it is possible to deliberately mislead by omission but unless it is extreme and you have excellent advice I would be very wary of going down that route, where you could very well be liable for substantial costs if you lose.

If I were your employer and received a letter along the lines of your last paragraph, I would either completely ignore any reference request or simply reply saying that the company is not willing respond. Most people will read that as having nothing good to say!

I'd be very careful what you stir up here.

elsien

Secretary94 said:

Thank you everyone – I think I have an answer to this now.

 

My only concern was my ex-employers being sent a reference request and replying to it in a spiteful way – just detailing why they had dismissed me.

 

The law allows my ex-employers to remain silent – which is fine by me – or if they provide a bad reference it cannot be inaccurate, misleading or discriminatory (Equalities Act 2010).  So if they only mentioned my dismissal and not the years of service I gave them (including good performance reviews) then that would be misleading and I could start a further action against them. 

 

I am told that the Settlement Agreement only deals with complaints up to the date of the Agreement and not anything which the company does afterwards.

 

So, I  probably will write to my ex-employer’s and tell them that they might get reference requests and that (1) they probably should not respond to them but if they do (2) then their reply might be defamatory and/or in breach of the Equalities Act 2010 and then invite my ex-employers (if they want) to agree some wording to a basic reference confirming when I worked at their company and at what job role etc. 

 

 

I think that would be a bad idea  - you really don’t have a lot of power in this situation so phrasing things in a way that is potentially going to rile your previous employer isn’t the best way to be going on. 

MattMattMattUK

You seem to have made a serious error of judgement which involved you being dismissed in the first place, you seem to be continuing that pattern by trying to potentially make this worse.

You had a settlement agreement with your ex-employer, that is the end of the relationship. Do not message them, do not contact them, do not make demands or threats, move on. 

Marcon

Secretary94 said:

 

I am told that the Settlement Agreement only deals with complaints up to the date of the Agreement and not anything which the company does afterwards.

 

Told by whom? The whole point of an agreement is that it agrees certain things, which in some cases cover future actions - eg using an agreed reference if enquiries are made at a later date.

Annisele

Secretary94 said:

So, I  probably will write to my ex-employer’s and tell them that they might get reference requests and that (1) they probably should not respond to them but if they do (2) then their reply might be defamatory and/or in breach of the Equalities Act 2010 and then invite my ex-employers (if they want) to agree some wording to a basic reference confirming when I worked at their company and at what job role etc.

Like others, I really can't see how it would help you to do that. It's unusual to agree not to give a reference - but since that is the agreement, I see no point in trying to reopen it now to specify what sort of reference you'd like the employer to give. The time to negotiate a basic reference was before you signed the settlement agreement.

I very much doubt the ex-employer will give any kind of reference (let alone a spiteful one) having agreed not to do so. But if it does, you can cross that bridge when you come to it. Don't poke a sleeping bear!