What did my referee say about me?

It is a common practice that when a person applies for a new job the employer will ask for referees to give references about the applicant. Usually the references are provided by phone directly to the employer. This means that the applicant does not know what the referee has said about them. Is the applicant entitled to know?

Under New Zealand law, an applicant can request a copy of the information which the employer holds about them. The employer, however, may not have to provide all of the information they hold. The employer does not have to provide information which is confidential.

When an employer contacts an applicant’s referee, the employer should ask specifically whether some or all of the information provided is confidential, and record this accordingly. If it is unclear whether the referee provided the information in confidence, it can be difficult for an employer to later determine the basis on which the information was provided.

Quite often the referee will be happy for the employer to release the information to the applicant. This is because an applicant will usually put forward referees whom they expect will provide good references.

An applicant can ask for a record of the notes made by an interviewer about their interview or application which are not confidential. A company’s internal information about an employee’s performance and whether or not to promote the employee, is not confidential. As a result, the employer should keep this in mind while writing the notes. An employee has a right to know what someone said about them, and who said it.

When a person requests access to information, the employer must:

• Decide as soon as possible whether the information will be released;

• Notify the employee the outcome of the decision, including any reasons why the information is withheld; and

• If the information is released, do so within 20 working days.

Even if there is information that is confidential, it is possible for the employer to provide some information or feedback to the applicant without disclosing the confidential information. This can be done by providing a generalised summary of comments without detailing who said what.

Any decision to withhold information can be referred to the Privacy Commissioner for review.