What processing condition can an employer rely upon under the GDPR when providing a reference?
Published on: 07/05/2019
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Article Authors The main content of this article was provided by the following authors.
Johanna Cunningham Senior Associate, Lewis Silkin (NI) LLP
Johanna Cunningham Senior Associate, Lewis Silkin (NI) LLP
Johanna cunningham

Since qualifying in 2018, Johanna has supported clients with disciplinary and grievance issues, defending employment tribunal claims, senior exits, redundancies, TUPE, and day-to-day HR queries. She also has a strong interest in the overlap between employment law and data protection, regularly advising on subject access requests, data breaches, employee monitoring, and matters involving cross-border workers.

What processing condition can an employer rely upon under the GDPR when providing a reference?

As a starting point, it is necessary to consider what specific personal data will be supplied as part of the reference. For example, if information on the employee’s absence levels is included in a reference and that information comprises information regarding the employee’s health, this will constitute special category data under Article 9(1) of the GDPR.

When processing personal data, the employer will have to ensure that it satisfies a lawful condition for processing as set out under Article 6(1) of the GDPR. If the employer is processing health data as part of the reference, it will also have to satisfy an additional

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 07/05/2019