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Providing Employee References

Two questions asked by employers alike are: Do I have to provide an ex-employee with a reference? If I provide a reference, what can I say in it?

Employers should carefully consider whether to provide a reference and what to include within the same. This is because an employer owes the ex-employee a duty to take reasonable care when providing a reference and can be liable to the ex-employee and the recipient of the reference in the event it does not.

Do I have to provide a reference?

In short, no you don’t. There is no legal obligation on an employer to provide a reference for an ex-employee. However, an obligation to provide a reference may arise in the following situations:

  • Contractual obligation i.e. you have agreed to provide a reference as per the terms of a settlement agreement;
  • You are under a regulatory obligation; or
  • Where an employee can prove there is an implied obligation i.e. where it is implied through an employer’s custom and practice of always providing references for ex-employees.

Providing a reference will involve the processing of personal data of the ex-employee and therefore you should ensure that the employee has consented to avoid being in breach of data protection laws. Where you provide a reference, you should ensure that it is marked “Private and confidential for the addressee only”.

What can you include in a reference?

A reference must be true, accurate and fair and should not give the recipient a misleading impression of the ex-employee. Although, it does not have to be detailed or comprehensive.

It is a myth that an employer cannot give a bad reference, provided the reference complies with the above principles. However, please bear in mind the following:

  • Avoid subjective opinions about the ex-employee which cannot reasonably be substantiated. Qualify any statements you make.
  • If you decide to refer to complaints or allegations that have not been investigated or put to the employee, ensure that this is made clear within the reference.
  • Any comments about absence or performance should not contravene the Equality Act 2010.

In our experience, the vast majority of employers only provide factual references confirming dates of employment and job title, and this is widely accepted by employers. If it is your policy to only provide factual references, you should explain this within the reference itself so that the recipient does not draw any adverse inferences from the fact you are only providing this limited information.

Getting it wrong?

Where you provide a false, misleading or negligent reference you could be sued by both the ex-employee and the recipient of the reference.

For specialist advice on references or on any other employment law matter, please contact our Coventry based Employment Law Solicitors:

Email: Lianne@askewslegal.co | Jake@askewslegal.co
Tel: 024 7623 1000