Can a prospective employer contact my current employer without my consent?

I’m looking to change jobs. Can a prospective employer I have interviewed with contact my current employer without my consent?

Reference checks are a common part of the recruitment process for employers looking to hire someone. It is lawful for your potential future employers to contact your current employers for the purpose of a reference check if they have received your express consent.  Most employers will have a process in place to obtain your consent in writing. However, if you are an employer, you should be mindful of how you conduct your reference checks and the information you are seeking from the employers of a prospective employee.

What laws govern reference checks?

All Australian businesses and organisations are required to comply with the Australian Privacy Principles found under the Privacy Act 1988 (Cth) which govern the collection, use and disclosure of personal information of individuals including employees.

Personal information might include, but is not limited to, information relating to an employee’s race, age, gender or religion. Employers need to be vigilant when providing and collecting information during a reference check to ensure that the conversation is kept to the substance of the employment relationship. This means restricting any discussion to issues such as the employee’s length of service, their skillset, work performance and conduct within the workplace.

Employers who disclose sensitive information about an employee expose themselves to the risk of legal claims such as defamation and breaches of confidentiality. These claims may emerge if a disgruntled former employee discovers that comments made during a reference check impacted their prospects of securing a new job.

Employers should be aware that employees have the right under the Privacy Act 1988 (Cth) to access a referee report that the employer has provided. For this reason, it is important that employers record the particulars of what was discussed during a reference check.

Conclusion

If you are an employer, be mindful of these precautionary steps to eliminate the legal risks associated with providing a reference check.

If you are an employee and believe that your current employer was contacted without your consent, call the employment lawyers at McDonald Murholme on (03) 9650 4555.