Disclosing mental health in references

[rumbold]

Hello. I'm in the process of moving jobs. I asked my current boss to provide a character reference which she did.

Earlier this week I met with my new boss who read me an extract from the reference in which the current boss makes reference to me needing support with my mental health. She has never had a conversation with me about my mental health and has never offered such support herself. I also have no diagnosis for mental health issues.

This was an awkward conversation with my new employer and I feel like it has put me in a position where my new employer has unfounded concerns about me which I will need to convince him otherwise about. He was, however, kind in the conversation.

My question is, has my current employer breached any employment law by disclosing this information? And if so what rights would I have to challenge it?

 

[eteb3]

Is the statement true? Your post doesn't quite make that clear.

If it is, it's "sensitive personal data" and it's very tightly controlled. It should never be revealed without your consent. You could call / email the ICO for their take, which (if in writing) might be useful to send to your new boss? But the cat's out of the bag.

If it's not, you may have a case in libel, but you would have to demonstrate on the balance of probabilities 1) that the statement is false; 2) that the statement has caused serious harm to your reputation (including your trade business or professional reputation).

Less difficult to argue, an employer has a duty of care to the employee when giving a reference. That may have been breached here. See second half of page here.

On this limited info and assuming it's untrue, I'd consider writing formally to the former employer's legal dept, telling them you want the record put straight.

 

[Mark T Jones]

Surely the key question here us where the mental health issue came from in the first place, and what it's significance is?

If its valid, surely it's in all parties' interests to be up front about it.

If it's complete conjecture then there is a different issue.

 

[WaveJumper]

This sounds like a homework question to me

 

[Fagin2021]

This sounds like a homework question to me

If it is, it's one with multiple correct and incorrect answers.

 

[Newchodge]

Hello. I'm in the process of moving jobs. I asked my current boss to provide a character reference which she did.

Earlier this week I met with my new boss who read me an extract from the reference in which the current boss makes reference to me needing support with my mental health. She has never had a conversation with me about my mental health and has never offered such support herself. I also have no diagnosis for mental health issues.

This was an awkward conversation with my new employer and I feel like it has put me in a position where my new employer has unfounded concerns about me which I will need to convince him otherwise about. He was, however, kind in the conversation.

My question is, has my current employer breached any employment law by disclosing this information? And if so what rights would I have to challenge it?

By asking for a reference you gave permisssion for the old employer to reveal what they know about you in a work context, unless you specified areas that must not be mentioned. Their only obligation to you after you gave that permission is that the reference must be true. If you have no mental health issues for which you needed support the reference is untrue and actionable. If it is true, the fact the person writing the reference was not directly involved is completely irrelevant.

 

[eteb3]

the reference must be true

Very strictly, the referee must have made reasonable efforts to ensure that it is true. If after taking reasonable care to investigate, they honestly rely on information they don't know to be false, they have discharged their duty.

Lord Lowry (Spring v Guardian Assurance [1994] at p. 24):
It is not asking too much to expect the referee to exercise reasonable care; to hold for the plaintiff in this appeal does not mean that the referee must guarantee the accuracy of a reference.

 

[numbersrule]

Hello. I'm in the process of moving jobs. I asked my current boss to provide a character reference which she did.

Earlier this week I met with my new boss who read me an extract from the reference in which the current boss makes reference to me needing support with my mental health. She has never had a conversation with me about my mental health and has never offered such support herself. I also have no diagnosis for mental health issues.

This was an awkward conversation with my new employer and I feel like it has put me in a position where my new employer has unfounded concerns about me which I will need to convince him otherwise about. He was, however, kind in the conversation.

My question is, has my current employer breached any employment law by disclosing this information? And if so what rights would I have to challenge it?

You say on the one hand that you have no diagnosis for mental health issues.
However, on the other hand you ask has your current employer breached any law by 'disclosing this information'?
Am I to understand it correctly, then, that even though you don't have a formal diagnosis, you have received support for some undiagnosed issue?
If this is the case, I would suggest you are going to have to be open and honest with your prospective new employer.
Please do clarify if I have misunderstood.

 

[Mr D]

Hello. I'm in the process of moving jobs. I asked my current boss to provide a character reference which she did.

Earlier this week I met with my new boss who read me an extract from the reference in which the current boss makes reference to me needing support with my mental health. She has never had a conversation with me about my mental health and has never offered such support herself. I also have no diagnosis for mental health issues.

This was an awkward conversation with my new employer and I feel like it has put me in a position where my new employer has unfounded concerns about me which I will need to convince him otherwise about. He was, however, kind in the conversation.

My question is, has my current employer breached any employment law by disclosing this information? And if so what rights would I have to challenge it?

Forget diagnosis - that can take longer. Has the employer at any time been aware of mental health issues?

 

[eteb3]

I've had a closer look at the GDPR and I think there's a good argument that implied consent to disclose health info, through OP requesting a reference, is not enough. See Art 9 ss. 1 & 2(a)

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (United Kingdom General Data Protection

www.legislation.gov.uk

An employer could probably rely on 2(h) for its own processing of health data, and 2(h) doesn't require consent. But I don't think they can argue that disclosing it to a new employer is "necessary ... for the assessment of the working capacity of the employee": they're not the ones doing the assessment, so it's not for them to even begin to consider what's necessary.

On the other hand, the referee has a duty of care to the new employer to give an accurate reference, so they may find themselves in a tricky position. Known untruths would surely expose them to being sued. Silence on what they know to be true? Not sure.

 

[Newchodge]

I've had a closer look at the GDPR and I think there's a good argument that implied consent to disclose health info, through OP requesting a reference, is not enough. See Art 9 ss. 1 & 2(a)

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (United Kingdom General Data Protection

www.legislation.gov.uk

An employer could probably rely on 2(h) for its own processing of health data, and 2(h) doesn't require consent. But I don't think they can argue that disclosing it to a new employer is "necessary ... for the assessment of the working capacity of the employee": they're not the ones doing the assessment, so it's not for them to even begin to consider what's necessary.

On the other hand, the referee has a duty of care to the new employer to give an accurate reference, so they may find themselves in a tricky position. Known untruths would surely expose them to being sued. Silence on what they know to be true? Not sure.

If they cannot give a fair and accurate reference they should limit to employed dates and job title.