Ask the panel

September 8, 2006

Worried about your employment, maternity, pension rights? Send your questions to The Times Higher advice panel.

I am a lecturer in a new university and keen to move south to be with my partner. I have applied for two jobs and been shortlisted for both. The interviews seemed to go well but on both occasions I have been turned down. I am beginning to wonder whether my university is giving me a poor reference. I am active in what was lecturers' union Natfhe and took a lead in the dispute. I fear my reference may be negative. Can I check?

* Our panellist from the University and College Union says: "In the first instance, you should ask for feedback from both institutions as to why you were unsuccessful and ask them whether they took up references.

If they indicate that the references were the cause of non-appointment (or you still suspect that to be the case), ask for a copy of the reference from your employer."

She goes on: "Most employers will be happy to provide a copy of any reference. However, if your employer refuses, you may still have legal rights of access. A reference is 'personal data' and as such is covered by the Data Protection Act. In general, the Act provides individuals with access to personal data held about them.

"However, exempted from this general right of access are confidential references provided by the employer. This exemption applies to your employer only. Therefore, once the reference has been provided to another body, then the Act may allow you right of access to the reference from the potential employer.

"However, any request for the data would be subject to the normal rules of disclosure. The institutions may deny access if they are disclosing information relating to a third party, eg, the referee. Even if the reference has been provided 'in confidence' and marked as such, the institutions would need to assess whether or not it is reasonable to withhold the information and will need to weigh the referee's interest in having their comments treated confidentially against your interest in seeing what has been said about you.

"You should therefore write to either (or both) the institutions to which references were supplied asking for a copy of the reference under the provisions of the Data Protection Act (this is known as a 'subject access request'). The information must be provided to you within 40 days and the institutions may charge you up to £10. If access to the data is denied, you should be given reasons for this."

She says that if you discover that the references are negative due to your involvement in the recent dispute then you should contact your union for advice. "Restoration of good industrial relations was part of the back-to-work agreement signed by the unions and the employers nationally on settlement of the dispute. Non-discrimination of members who took part in the action is an implied condition of that agreement, and the UCU would regard the issuing of negative references based on participation in the national dispute as contrary to that national agreement," she says.

* Our panellist from the Universities and Colleges Employers' Association says: "Contact the institutions where you had your interviews and ask for feedback on your application and whether or not they obtained references from your employer. This should establish if the references were a factor in their decision not to appoint you or whether there were other reasons why you were considered unsuitable.

"Depending on their response, if you decide that you want to check the content of your references you should ask your university for copies in the first instance. However, they are entitled to refuse to show these to you because of an exemption in the Data Protection Act. If they do not agree, you could ask the institutions that interviewed you for copies, but they do not have to agree if the references are marked confidential.

They may contact your employer to ask for consent first and they will need to balance both the rights and interests of the author and yours before making a decision."

This advice panel includes the University and College Union, the Universities and Colleges Employers' Association, Research Councils UK, the Equality Challenge Unit and Rachel Flecker, an academic who sits on Bristol University's contract research working party. Send questions to advicepanel@thes.co.uk

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