Of all the steps in a background check, reference checking is probably the most valuable — and the one most likely to become a legal problem if handled incorrectly.


The golden rule: never without consent

In Spain, calling a former employer to ask about a candidate without the candidate’s knowledge and explicit consent is not merely discourteous: it is an unlawful disclosure of personal data to a third party and an infringement of the candidate’s right to privacy. The candidate should provide the contact person and expressly authorise the call.


What valid consent requires

A generic and ambiguous authorisation is not enough. Consent must be freely given, specific, informed and unambiguous, as required by the GDPR, and it is advisable to document it: which former employers may be contacted, for what purpose and for how long the information obtained will be retained.


What can be asked in a reference check

Once authorised, the conversation with the former manager must be strictly limited to the candidate’s professional performance and conduct: How did the candidate integrate into the team? Did they achieve the agreed objectives? What were their main responsibilities? These are legitimate and useful questions.


What must never be asked

Questions about health, family planning, political views, trade-union membership or private life are not permitted under any circumstances. In addition to infringing the former employee’s privacy, collecting this type of data (special categories under Article 9 of the GDPR) in a recruitment process may constitute a very serious discrimination-related infringement.


What a well-conducted reference check is really for

Reference checking is particularly useful for clarifying inconsistencies in a CV: gaps in employment history (“employment gaps”), or discrepancies between the job title stated by the candidate and the responsibilities they actually performed. Used in this way, with consent and limited to the professional sphere, it is one of the most reliable tools in the entire background-check process.


See also: Human Risk and Background Checks in Spain: The 2026 Reference Guide and Company Certificate vs. Employment Reference: The Difference Every Recruiter in Spain Should Know