Providing References about Former Employee is not Conflicting with the Privacy Law (GDPR)

Year of publication

2018


Edition number

304


Reference

Court of Appeal Arnhem-Leeuwarden, 21 August 2018, ECLI:NL:GHARL:2018:7492


Decision

An employer was not liable for the damage that a former employee claimed to have suffered as a result of references given by the employer about the former employee because the employer had not acted unlawfully. Providing the references was also not conflicting with privacy law.

For over half a year an educational institution had employed a substitute German teacher. Shortly after the start of his employment, a pupil’s parent had asked the educational institution whether this happened to be the same teacher who had previously worked as a teacher at another school and who had been dismissed there after a short while because there were problems and because no Certificate of Good Conduct had been submitted. Inquiries with the teacher showed the educational institution that the employee had, indeed, worked at the other school and that, indeed, he had been summarily dismissed. The teacher had not disclosed this in his curriculum vitae. After inquiry about the circumstances under which the dismissal had taken place the teacher explains that he had been very surprised by the dismissal, because there was a risk of being harassed out of his job by a student who was supported by his parents, which was exactly what had happened to his predecessor. He had discussed it with his team leaders at the time and the dismissal came quite as a surprise at a time when things improved. The teacher agrees that the educational institution will make inquiries at that other school. This inquiry shows that the dismissal was due to the teacher's behaviour towards female teachers and pupils; which made them feel insecure. The other school, however, could not mention any incidents in this context. An important part during the dismissal had been that the teacher could not submit a certificate of good conduct at the time.
The employee disputes the accuracy of this information. It is agreed that the teacher can remain with the educational institution, but that he should as yet submit the certificate of good conduct (which still had not been received until then) as soon as possible. In the end this is also what happens. In case complaints do arise from pupils who would not feel safe with the teacher, a number of agreements are made with the teacher. It is agreed that the educational institution will try to the best of its abilities to deal with the perception that has arisen in the meantime.
After the end of employment with the educational institution, the educational institution of another school receives the request to provide references about the teacher. Without prior consultation the teacher had nominated the educational institution as a reference. The school indicates that it has doubts about appointing the teacher but that it is prepared to give him a chance with positive references. Then, the educational institution reports to the new school, among other things, that female colleagues and pupils felt insecure with the teacher and that the teacher had been dismissed at the previous school. The teacher is informed that the educational institution felt obliged to share this information with the new school because the interests of vulnerable pupils are at stake. The educational institution also tells that the new school has been informed that they have not had any actual incidents, that the problems with the teacher could openly be discussed and that good agreements were made.
When, subsequently, the teacher sues the educational institution before the Sub-district Court in order to claim compensation for damages due to unlawful acts by the educational institution, this claim is rejected. On appeal, the Court of Appeal has to decide on the case.
The Court of Appeal believes that providing the references was not in conflict with the Privacy Law (as of 25 May 2018 the General Data Protection Regulation) because, by nominating the educational institution for references the employee had given his consent for submitting information about his person and his functioning. If the employee had wanted the educational institution to refrain from sharing certain information with the new school, the teacher should have indicated so to the educational institution, which could have decided not to provide references then. The Court of Appeal points out that, on penalty of its liability towards the new school or the teacher, the educational institution was obliged to provide a correct picture of the teacher. In case of reasonable doubt about the correctness of information obtained from a third party, it should not just be provided, but it should either be referred to this third party or the doubt regarding the correctness of the information should be reported. The Court of Appeal attaches importance to the fact that the teacher had concealed the employment at the previous school for the educational institution, as a result of which the educational institution was unexpectedly confronted with alarming reports regarding the teacher. According to the Court, providing incorrect information is only negligent if the educational institution had known or should have known that the information provided was incorrect. This was not the case. Thus, the teacher’s compensation claim is rejected.


Comments

In practice, certificates or references by employers and former employers are often quite carelessly provided, but this should not be the case. It concerns the provision of personal information and, under the GDPR, there has to be a legal basis for this purpose. In this case the Court recognizes this purpose in the permission that would be included in the nomination of the ex-employer as a reference, but the GDPR requires, among other things, that the former employer can prove this permission.
As far as the provision of certificates is concerned, the law has an express provision stipulating that the employer should mention the nature and duration of the work performed and the term of employment in the certificate. Only at the request of the employee the certificate may mention the way in which the employee has fulfilled his obligations, in what way the employment contract was terminated and, if the employer terminated the employment contract, on what grounds it was terminated. The law explicitly stipulates that the employer is liable for any damage suffered by the former employee or by a third party as a result of failure to provide this information or of deliberately or culpably providing incorrect information. The law does not contain any express provision on providing references, but it is obvious that the provision with regard to the certificate will be applied accordingly. That is also what the Court does this in the present case.



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