The way reference requests are dealt with can cause problems long after employment has ended.

Do I have to give a reference?

Generally employers do not have to provide a reference, but there are some exceptions (such as financial services and some aspects of social services). However, it is accepted practice to do so.
Acting consistently when giving references generally reduces the risk of claims. Employees can claim that a poor reference was unlawful discrimination (ie. that it was given because of a protected characteristic, for example they did not share your Christian beliefs) or, if still employed, that it is victimisation (ie. revenge for a historic complaint of discrimination).

What rules are there about the contents of a reference?

It is not unlawful to give a negative reference, but any reference must be:

  • Accurate. You must exercise reasonable care and skill to ensure the accuracy of the facts in a reference. If dismissed for poor performance, calling it “redundancy” may be ‘nicer’ but it is not accurate.
  • Fair. A reference can be accurate but give an unfair impression. For example, you may have genuine concerns about misconduct, but alluding to this in a reference without having gone through any process would not be fair.
  • Not misleading. A reference does not need to be comprehensive, but what is there when read as a whole must not mislead. For example telling the recipient that an employee resigned, without revealing that they resigned having been given notice of dismissal for admitted fraud could be misleading

This applies just as much to ‘personal’ references as professional ones.

To reduce risk, many employers give a short, factual reference giving the barest facts. Explaining in the reference that this is your standard practice reduces the risk of the recipient drawing an adverse inference from this.

Reducing risks

Get it wrong and the employee and recipient can sue for negligence. If still employed, the employee may claim discrimination or resign and claim unfair constructive dismissal. We therefore recommend:

  • Centralising the giving of references to help consistency
  • Using standard form references where practicable, incorporating wording to explain that this is your normal practice.
  • Being brief rather than giving effusive references that are not merited.

It can be tempting to give a verbal reference to convey things you are not comfortable saying in writing. There are ways the risks can be reduced but we would generally not recommend giving contentious verbal references. You have no control over notes made by the recipient or the accuracy of their notes, and it may be more difficult to prevent the reference subject having sight of them under a GDPR subject access request.

 

This information has been provided by solicitors working for Edward Connor Solicitors. It is designed for the purpose of knowledge sharing only and does not constitute legal advice.

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