Referee disclosed pregnancy

__oc__

Hi,

So looking for a bit of advice. I have applied to work overtime with an agency and put down my current line mananger as a reference.
I did not disclose to agency that I am pregnant as wished to do so during interview (it is very obvious at this stage).
My line manager disclosed in the reference that I am pregnant and I just wanted to know if this was allowed? I did not give permission.

Mrs OBumble

They can say anything which is true and verifiable.

__oc__

Mrs OBumble wrote: »

They can say anything which is true and verifiable.

I am not disputing the pregnancy, what I am wondering is how personal information of a medical nature can be disclosed in a reference as I was under the impression that this was not allowed.

AndrewJRenko

Mrs OBumble wrote: »

They can say anything which is true and verifiable.

No they can't. The Data Protection Acts require them to only use information for the purpose that was intended. Presumably when the OP disclosed her pregnancy, she didn't say 'btw, it's OK to tell anyone looking for a reference about this'.


This sounds like a breach of Data Protection law, and a pretty horrific breach of confidence for any line manager.

runawaybishop

AndrewJRenko wrote: »

No they can't. The Data Protection Acts require them to only use information for the purpose that was intended. Presumably when the OP disclosed her pregnancy, she didn't say 'btw, it's OK to tell anyone looking for a reference about this'.


This sounds like a breach of Data Protection law, and a pretty horrific breach of confidence for any line manager.

A visible pregnancy is not data.

lawred2

AndrewJRenko wrote: »

No they can't. The Data Protection Acts require them to only use information for the purpose that was intended. Presumably when the OP disclosed her pregnancy, she didn't say 'btw, it's OK to tell anyone looking for a reference about this'.


This sounds like a breach of Data Protection law, and a pretty horrific breach of confidence for any line manager.

How is that data?

Either way, I don't think it's particularly fair play that it was shared

uberwolf

from a paper comparing the definitions of data in different member states (where A = Austria:

National formulations almost invariably identify a typical set of specially sensitive data
types consisting of data relating to political, religious or other beliefs, trade union
membership or activity, sex life, criminal record, and health record. There are some
interesting variations around that typical pattern; examples are:- A includes pregnancy;
D uses the notion of “data on an individual’s purely personal circumstances”; Fr uses
broad category of data on sickness and disability, not just health records; Gr includes
philosophical with religious beliefs, and “social welfare” with sex life; It also includes
philosophical beliefs, and, similarly to Fr, “health conditions” generally; Sp has a
composite category of “ideologies, religion or beliefs”.

I'd suggest that it's inclusion in one place doesn't go to say that its express omission in every other place means it can't be captured.

http://ec.europa.eu/social/BlobServlet?docId=2505&langId=en

ted1

__oc__ wrote: »

I am not disputing the pregnancy, what I am wondering is how personal information of a medical nature can be disclosed in a reference as I was under the impression that this was not allowed.

Is pregnancy a medical nature?

Mrs OBumble

Any information that an employee gives to their manager is for the purpose of managing the employment relationship. Nothing is private - if you tell a manager, you should assume that every above them in the management team, and HR is entitled to the information to make decisions about you. Nothing is secret.

In this case, it's very simple to see a scenario where passing on the information is valid:

Agency: "Hello, we have received authorisation from __oc__ to seek a reference from you. Would you like to so scan you a copy of this?"

Manager "yes please".

<<gap while copy is sent>>

Agency: "Great to talk to you again. Can you confirm __oc__'s dates pf employment with you and her position?"

Manager: "Sure: __oc__ was employed as a trainee widget-woggler in Jan 2013, and promoted to senior widget-woggler in July 2016. She is still employed by us currently".

Agency: "Thank you. As you may know __oc__ has applied to work additional hours through our agency. Would you have any concerns about her doing so?"

Manager: "Yes, we would. We have made a number of accommodations to make it possible for __oc__ to continue to work safely during her pregnancy. Widget-woggling is a stressful occupation, and we actively monitor the overall stress levels our employees are subject to. Our concern is that working for additional hours while she is pregnant would be unduly stressful, and based on this we would not be willing to approve her taking secondary employment anywhere until her maternity leave is complete. After that, we would consider it based on our observations regarding how much the workplace stress is impacting her."

runawaybishop

uberwolf wrote: »

from a paper comparing the definitions of data in different member states (where A = Austria:



I'd suggest that it's inclusion in one place doesn't go to say that its express omission in every other place means it can't be captured.

http://ec.europa.eu/social/BlobServlet?docId=2505&langId=en

If it's stored it is data, something observable isn't data.

__oc__

Thank you everyone for the clarification on my issue. I am still hoping to be successful in the interview which is coming up soon.

AndrewJRenko

runawaybishop wrote: »

A visible pregnancy is not data.

Any information given by employee to employer is data. In face, if the employer has observed the pregnancy in the workplace, their observation is workplace data too.

lawred2 wrote: »

How is that data?

Because it is information that was given to the employer relating to the course of their employment.

Mrs OBumble wrote: »

Any information that an employee gives to their manager is for the purpose of managing the employment relationship. Nothing is private - if you tell a manager, you should assume that every above them in the management team, and HR is entitled to the information to make decisions about you. Nothing is secret.

In this case, it's very simple to see a scenario where passing on the information is valid:

Agency: "Hello, we have received authorisation from __oc__ to seek a reference from you. Would you like to so scan you a copy of this?"

Manager "yes please".

<<gap while copy is sent>>

Agency: "Great to talk to you again. Can you confirm __oc__'s dates pf employment with you and her position?"

Manager: "Sure: __oc__ was employed as a trainee widget-woggler in Jan 2013, and promoted to senior widget-woggler in July 2016. She is still employed by us currently".

Agency: "Thank you. As you may know __oc__ has applied to work additional hours through our agency. Would you have any concerns about her doing so?"

Manager: "Yes, we would. We have made a number of accommodations to make it possible for __oc__ to continue to work safely during her pregnancy. Widget-woggling is a stressful occupation, and we actively monitor the overall stress levels our employees are subject to. Our concern is that working for additional hours while she is pregnant would be unduly stressful, and based on this we would not be willing to approve her taking secondary employment anywhere until her maternity leave is complete. After that, we would consider it based on our observations regarding how much the workplace stress is impacting her."

From a practical point of view, you are unfortunately correct that often, nothing is secret. There are cases where employees are assured confidentiality and entitled to confidentiality, like disclosing of medical details, disability status, family status. If you submit a cert to HR showing that you're being treated for depression, this information should absolutely NOT be shared with your line manager without your explicit permission and notification. If you notify HR that your next of kin is your same-sex partner, this information should absolutely NOT be shared with your line manager without your explicit permission.



From a legal point of view, being in employment does not give employers any rights to ride roughshod over data protection law. They STILL have the obligations to only use data for the purpose specified and intended.



Any HR person with half a brain would be very well aware that disclosing a pregnancy is dynamite in a recruitment situation. It sounds like the HR person was doing their best to make sure the employee didn't get the job, which is a fairly dispicible action.

Addle

OT-but does a request for a reference not usually come after you've been successful at interview?

__oc__

Addle wrote: »

OT-but does a request for a reference not usually come after you've been successful at interview?

Normally they do however at the application stage they asked was it ok to contact references and I had said yes.

Sleeper12

AndrewJRenko wrote:

No they can't. The Data Protection Acts require them to only use information for the purpose that was intended. Presumably when the OP disclosed her pregnancy, she didn't say 'btw, it's OK to tell anyone looking for a reference about this'.

Despite what's been posted already I don't believe that this is a breach of the GDPR regulations. Having said that I'm not sure why she would mention the pregnancy. It shouldn't have any relevance in a reference as far as I can see

AndrewJRenko

Sleeper12 wrote: »

Despite what's been posted already I don't believe that this is a breach of the GDPR regulations. Having said that I'm not sure why she would mention the pregnancy. It shouldn't have any relevance in a reference as far as I can see

One of the fundamental principles of existing Data Protection laws is that data is only used for the purposes specified when the data is collected

Mrs OBumble

AndrewJRenko wrote: »

One of the fundamental principles of existing Data Protection laws is that data is only used for the purposes specified when the data is collected

Data given to an employer is for the purpise of managing the employment relationship. That includes giving references.

Sleeper12

AndrewJRenko wrote:

One of the fundamental principles of existing Data Protection laws is that data is only used for the purposes specified when the data is collected

Agree. What if op hasn't told boss that she's pregnant but she's showing. Is it data? It's certainly not data provided by op.

Pregnancy isn't usually a medical issue. It's not an illness. It's grey area if it's covered by gdpr especially if she is obviously pregnant.

For me the real question is why did her boss share this information. Data or not. What has it to do with the reference or the job?

Addle

What right have they to know Smyth about you if they haven't yet offered you a job?

Homer

This has turned into a to and fro on the legalities or otherwise of gdpr surprise surprise.. aside from that is the OP not surprised that the fact they would turn up heavily pregnant for an interview for a job not have an influence on their chances of getting said job?

Peregrinus

Addle wrote: »

What right have they to know Smyth about you if they haven't yet offered you a job?

You have given them the right by nominating a referee and giving your consent for them to approach the referee and ask. The issue here is whether the referee has the right to tell them about the pregnancy.

AndrewJRenko

Mrs OBumble wrote: »

Data given to an employer is for the purpise of managing the employment relationship. That includes giving references.

Really? When did you decide this? And when did you inform employees about this purpose, as you are required to do by law?

Are you saying that your referee could, for example, disclose medical details from the latest sick cert?

AndrewJRenko

Sleeper12 wrote: »

What if op hasn't told boss that she's pregnant but she's showing. Is it data? It's certainly not data provided by op.

That observation would have been made in the workplace, and therefore the same obligation to confidentiality would apply.

AndrewJRenko

Homer wrote: »

This has turned into a to and fro on the legalities or otherwise of gdpr surprise surprise.. aside from that is the OP not surprised that the fact they would turn up heavily pregnant for an interview for a job not have an influence on their chances of getting said job?

I never mentioned GDPR. This would be an issue under data protection legislation,, regardless of GDPR.

And who said anything about being heavily pregnant?

Sleeper12

AndrewJRenko wrote:

That observation would have been made in the workplace, and therefore the same obligation to confidentiality would apply.

You assume too much. What if the observation was made outside of work?

Remember pregnancy isn't a medical issue.

Peregrinus

Sleeper12 wrote: »

You assume too much. What if the observation was made outside of work?

Remember pregnancy isn't a medical issue.

No, but it is a personal issue. Granted that a referee has permission to disclose information which is relevant to a job application, the question is whether information about pregnancy is included in that. And, on the face of it, it isn't; whether a candidate is pregnant or generally not is not something that an employer can legally take into account, and a referee should know this, and should not be commenting on pregnancy.

notharrypotter

AndrewJRenko wrote: »

And who said anything about being heavily pregnant?

The OP in post1

Mrs OBumble

Sleeper12 wrote: »

You assume too much. What if the observation was made outside of work?

Remember pregnancy isn't a medical issue.

I'm impressed if anyone can tell by observation alone that a woman is pregnant vs just fat. (And i say that as a woman who's fat enough to look pregnant.)

It's in a woman's interests to declare her pregnancy to her employer as early as possible: it gives her a lot if employment protection, the right to attend antenatal appointments during work time, and gets a risk assessment done. Really the observation scenario is a red herring.

runawaybishop

AndrewJRenko wrote: »

Any information given by employee to employer is data. In face, if the employer has observed the pregnancy in the workplace, their observation is workplace data too .

This is not correct, data has a specific definition in the act -

"data” means information in a form in which it can be processed.

Simply observing something about someone has nothing to do with GDPR. Unless it's written down in some way it is not data.

Victor

AndrewJRenko wrote: »

And who said anything about being heavily pregnant?

notharrypotter wrote: »

The OP in post1

Where does it mention "heavily pregnant"?

__oc__ wrote: »

Hi,

So looking for a bit of advice. I have applied to work overtime with an agency and put down my current line mananger as a reference.
I did not disclose to agency that I am pregnant as wished to do so during interview (it is very obvious at this stage).
My line manager disclosed in the reference that I am pregnant and I just wanted to know if this was allowed? I did not give permission.

__oc__

Victor wrote: »

Where does it mention "heavily pregnant"?

Just to clarify I am obviously pregnant however not heavily pregnant I am not too far off being 6 months gone

AndrewJRenko

Mrs OBumble wrote: »

It's in a woman's interests to declare her pregnancy to her employer as early as possible:

That depends on a lot of factors including the attitude of the employer. If the employer is not responsible, or if the employee is going for an internal promotion, they may choose to withhold the information until it suits them. And they are fully entitled to do so.

Vetch

Pregnancy isn't an illness or a medical condition but the fact of being pregnant is 'health data' which is the phrase used in GDPR, and it's special category data. This example from the ICO in the UK describes a scenario (half way down the page): https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/consent/when-is-consent-appropriate/

So while the op might have given consent for a reference, she didn't the explicit consent likely to be required for health data to be released to another controller - imo this is a data breach.

Foweva Awone

__oc__ wrote: »

Normally they do however at the application stage they asked was it ok to contact references and I had said yes.

I presume you discussed this with your referee, so that they'd know to expect the communication? Could you not have used this opportunity to say that you hadn't disclosed the pregnancy and that you'd appreciate if they wouldn't mention it either.