From time immemorial, whenever an employee moves to a new employment, it had been a standard practice for employers of labour to give employment/work reference to the prospective employers of such former employees.
The contents of such references varied on case-by-case basis and in most cases, the employees subject matter of the references had little or no knowledge of same and consequently had no control over the transferor or the recipient of such information which may make or mar them in their career pursuit.
With the global prominence of data protection laws and regulations came the need to now interrogate what used to be the routine practice of further processing employees’ personal data without their informed and express consent and thereby violating their rights to privacy in the process except certain other validating factors exist.
A lot has been said and written about employers’ (as data controllers and/or administrators) obligations to their staff under the Nigeria Data Protection Regulation but it must be emphasized that such duties do not end upon cessation of master/servant relationship but endures for as long as the servant’s record are retained by the master, hence accentuating the importance of making and updating employees’ data-retention policies by employers of labour. That is not however the focus of this intervention.
Can employers lawfully send their ex-employee’s references without their informed consent?
By virtue of Article 2.2 of the NDPR, personal data can only be lawfully processed where:
a) Data subject has given consent for specific purposes;
b) Necessary for performance of contract;
c) Necessary for compliance with legal obligation;
d) Necessary to protect vital interest of data subject;
e) Necessary to perform task in public interest
Now, we will consider all the indices of lawful processing of data to ascertain whether or not sending of references falls under any of them while bearing in mind the meaning of employee references (according to https://www.inc.com/encyclopedia/employee-references.html) thus:
“Employee references are the positive or negative comments about an employee’s job performance provided to a prospective employer. In most cases, a prospective employer will contact a person’s current or former employer to seek references as part of the process of considering that person for a new position. Prospective employers check references during the interview process in order to ensure that a candidate’s assertions about his or her job skills and work experience are accurate. In fact, obtaining references is one of the most important parts of the hiring process because it can provide valuable information that sets one candidate apart from others and facilitates a sound hiring decision.”
On Employee’s consent and necessity of processing for performance of contract
Experience has shown that the data subject is seldom or never aware of the request for his employment reference proceeding from his current employer to the former employer, hence an employee’s consent is hardly sought and/or obtained before the exchange of such pleasantries between his past and prospective employers.
Assuming the employee’s consent is even sought and obtained, it is our modest opinion that such cannot constitute valid consent since it couldn’t have been freely given, knowing fully well that his chances of securing the new job may be dependent on favourable reference from his ex-employer, hence such consent is induced especially since the employee may not know the contents.
The provision of article 2.3(ii)(d) of the NDPR is instructive in this respect thus:
“Data Controller is under obligation to ensure that consent of a Data Subject has been obtained without fraud, coercion or undue influence; accordingly:
d) when assessing whether consent is freely given, utmost account shall be taken of whether, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary (or excessive) for the performance of that contract.” (Emphasis mine)
From the foregoing provision, it is our considered opinion that: (a.) The status and bargaining power of an employer (past or present) constitutes undue influence on an employee to give consent for the processing of his personal data in order to secure another employment and (b.) Most employment offers/contracts are made subject to references from past employers which, in our humble opinion, is not necessary for the performance of the subsequent contract except in cases of crime or other vices.
Necessary for legal obligation
A legal obligation has been defined as any obligation from time to time created by any enactment or authority. The Labour Act, Cap 198, Laws of the Federation 1990 (LA) is the principal law regulating labour relations in Nigeria but out of its 92 sections none is expressly dedicated to employer’s obligation to provide work reference or work certificate.
Sections 7, 8 and 9 of the LA expressly list matters that must be contained in an employment contract but the obligation to provide employment/work reference is conspicuously absent and thereby activating the canon of interpretation of ejusdem generis rule to dislodge any suggestion that employment reference is contemplated by the relevant sections. See Federal Republic of Nigeria v Ibori (2014) LPELR- 23214 (CA).
From the foregoing, we again, modestly conclude that, under the extant LA, an employer does not have any legal obligation to give employees reference/work certificate with or without request.
Employment contracts are, by their nature, private agreements with the exception of employments with statutory flavour, which are arguably public matters, since the government is the employer and wages are paid from public funds.
The Nigerian Supreme Court in Centre for Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666) 518 @ 583, defined the term “public interest” as:
“…the general welfare of the public that warrants recognition and protection of something in which the public as a whole has a stake especially, an interest that justifies government regulation.”
Admittedly, although the public is interested in how public funds are spent, this writer modestly thinks, positing that employment reference is a matter of public interest is, drawing the principle too far, except always, such employee’s subsequent employment constitutes grave danger to the state as a whole.
From the apex court’s definition above, can one now say that a civil servant’s employment reference concerns the general welfare of the public that warrants recognition and protection simplicita? I humbly, think not!
Vital interest of the employee
Although vital interest is not specifically defined under the definition article of the NDPR, an inference can be drawn as to its meaning from article 2.12(f) thus:
“The transfer is necessary in order to protect the vital interests of the data subject or of other persons, where the data subject is physically or legally incapable of giving consent; provided, in all circumstances, that the data subject has been manifestly made to understand through clear warnings of the specific principle(s) of data protection that are likely to be violated in the event of transfer to a third country…” (Emphasis mine)
Indubitably, good references are in the interest of an employee, but the NDPR is clear that, processing such without consent can only be lawful where done in the data subject’s vital interest and it is our belief, that except of course, where the employee is bedridden and is unable to give consent but that is rarely the case where employers give references without recourse to the employees.
Flowing from the above, this writer opines that, an employer’s provision of employee’s reference to a third party without the employee’s express consent does not fall under processing in the latter’s vital interests contemplated under paragraph d of article 2.2(ii) of NDPR.
Performance of contract
Article 2.2(ii) provides that:
“Without prejudice to the principles set out in this regulation, processing shall be lawful if at least one of the following applies:
Processing is necessary for the performance of a contract to which the Data Subject is party or in order to take steps at the request of the Data Subject prior to entering into a contract.” (Emphasis mine)
From the clear provision above, it appears settled that, an employer is at liberty to provide employee’s work reference without the requirement of seeking further consent once such a clause is embodied in their employment contract or any other written agreement between the parties.
The problem that arises here is, where there is no such clause in the employment contract, would such processing still be lawful? This poser seems to have been answered by the National Industrial Court of Nigeria (NICN) in the case of Kelvin Nwaigwe v. Fidelity Bank Plc (unreported Suit No. NICN/LA/85/2014) where Kanyip, J. (as he then was) held that:
“I am persuaded by the force of these UK case law authorities that in appropriate cases there is an implied term in contracts of employment imposing duty on the employer to provide work reference in respect of its employee, whether former or existing. The defendant in the instant case is a Bank and hence a financial institution. This means that the defendant has an obligation to give a work reference to, or in respect of, the claimant, which work reference must be true, accurate, fair and not misleading to a future employer; and I so find and hold. In this respect, relief (c) claimed by the claimant succeeds in terms of the defendant giving a true, accurate, fair and not misleading reference of career record on demand to the claimant.” (Emphasis mine)
Although the decision above was handed down pre-NDPR days, this writer is of the considered view that, the reasoning of the court importing the implied obligation to provide work reference, remains the law in Nigeria until set aside by the appellate court.
Conclusively, as held by the NICN above, in appropriate cases, employers are at liberty to give work reference to their employees’ (past or present) prospective employers without seeking further consent on the strength of the contract of employment pursuant to article 2.2(ii)(b) of the NDPR provided always that the reference must true, accurate, fair data of the employee.
Olumide writes from Lagos, Nigeria and can be reached via firstname.lastname@example.org