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Practical tips on providing a reference

There is no legal obligation to give a former employee a reference, albeit, the vast majority of organisations will do so in some shape or form. Many employers tend only to provide factual references, confirming the employee’s job title, length of service, salary and reason for leaving, regardless of what the reference request may ask for. Some organisations still give ‘old school’ references, which go into far more detail about the employee’s skills, strengths, suitability for the role etc.

References may be provided either in a personal capacity or on behalf of the employer as a corporate reference. The employer will be legally responsible for the contents of a corporate reference because it is provided on its behalf. A personal reference is one given by an individual in a personal capacity. It may refer to work done for a particular employer, but it is not given on behalf of the employer.

When giving a reference, the following guidelines should be adhered to in order to avoid any unwelcome repercussions from a former employee or indeed their new employer:

  • The reference should be provided in accordance with any workplace policy. The policy should be adopted and adhered to consistently.
  • The legal position will be the same whether the reference is given in writing or over the telephone. It is preferable for references to be given in writing to ensure a verbatim record is maintained. If references are given verbally, a detailed contemporaneous note should be created and filed.
  • If only providing a brief factual reference with dates and job role, explain that it is Company policy to provide a reference only in this format.
  • The reference must be consistent with the real reason for any dismissal and any written reasons provided to the employee at that time.
  • The reference must be factually accurate and provide a balanced overview of the employee, although it does not need to be full and comprehensive.
  • Employers owe employees a duty of care when preparing references to ensure the information it contains is true and does not give a misleading or unfair reflection of the employee.
  • The employee should be made aware of any complaints or performance concerns that are referred to in the reference and these should be documented on the employee’s personnel file.
  • Any information about absence must comply with the employer’s obligations under the Data Protection Act 1998.
  • Any comments about performance or absence should not be related to a disability or pregnancy/maternity.
  • An employer should not refuse to give a reference as a result of an employee bringing proceedings against it, making allegations against it or else giving evidence against it in proceedings as this may result in a separate victimisation claim.
  • Unless the employee agrees, spent convictions should not be included in a reference unless the job is covered by the Exceptions Order to the Rehabilitation of Offenders Act 1974.
  • Referees must be able to justify and support any comments made in a reference and show either that they are true or that they honestly believe that the contents of a reference are true, to avoid a potential defamation claim. Comments on suitability for a new role should be given with caution as they may be more difficult to objectively justify.
  • The reference should be marked “Private and confidential for the addressee only”.

How can Askews help you?
Askews Legal LLP has a dedicated team of Employment specialists. For advice or assistance on any employment law related matter, please contact contact Lianne Payne, Head of Employment at Askews Legal LLP (Lianne@askewslegal.co) or Click Here to enquire or call us on 02476 231000. Confidential Quick service assured.

 

Askews Legal LLP – Solicitors Coventry.