As an employer, there is generally no legal obligation to give a reference, if one is given it should be a fair reflection and accurate. It’s more common these days for employers to only give a factual reference stating dates of employment, job title and salary as this is deemed to be the safest option.
This article aims to help you understand what you should and should not say in a reference to keep you out of hot water.
A case against Citizens Advice Merton & Lambeth highlights the risks involved in giving a reference. In this case, the Employment Tribunal ruled that Mr Mefful had been discriminated against after his ex employer (Citizens Advice Merton & Lambeth) made comments linked to his sickness absence in a reference.
What should you do?
If you are giving a reference on behalf of the business, then make sure you have authority to do so. Write it on company headed paper or send it from a work email address. This way it is likely to be treated as a business reference, rather than a personal reference, in the case of a dispute. It is best practice that a business has a policy on who can provide a reference and the format that should be used across the board.
Just remember that whether you give a written or an oral reference, you have a duty to take reasonable care to ensure it is true, accurate and fair and that it is not misleading – a duty that is owed to both the employee and to the new employer. It is always advisable to only provide a written reference, that way there is no dispute as to what has or has not been said.
If you provide a bad reference that you cannot substantiate, you run the risk of your employee/former employee suing you for damages if they did not get the job, or suffered some other financial loss because of it. In a worst case scenario, they could even bring an action against you for defamation or discrimination. On the flip side, the new employer could also claim damages against you if you give a glowing reference for an employee which is not an accurate reflection of their performance.
So what are your options?
Refusal
You could opt not to provide references for any employee as a matter of policy; you are not under any obligation to do so unless your employee’s contract of employment clearly states that you will.
Failure to give a reference, without any explanation, can also imply that you have had problems with the employee. This could give rise to claims that you have discriminated against them – on grounds of sex, age, race, disability, sexual orientation or religious belief, for example. They could also argue that you have broken the term of mutual trust and confidence that is implied in every employee’s contract of employment. So, if you have a policy of not giving references, respond to each request for a reference with a specific statement that it is not your policy to give them, to avoid misunderstandings.
Bear in mind though that not providing a reference could have a negative effect on a person’s future and effect how ex-employees and other employees view your company.
Bare facts
Another option is to only provide bare facts for example:
- the position or positions held by the employee
- salary and other benefits
- commencement and termination dates.
State that this is your policy on the reference you give, so that the new employer does not read anything into the fact that you have not provided fuller details. You may also agree that you will only provide bare facts as part of a settlement agreement where an employee has been made redundant or has been dismissed.
Full references
Most full references include the bare facts, in addition to key responsibilities, an assessment of the employee’s performance, views on their personal qualities relevant to the positions held, for example honesty, integrity, drive, etc, their timekeeping, and reasons for leaving.
The duty to take care to be true, accurate and fair, and not to be misleading, means you should avoid:
- Failing to respond to specific questions in a request for a reference without explaining why.
- Omitting key information that a new employer would expect you to disclose.
- Organising the information in a way that would give a reasonable person the wrong inference or impression of the employee.
- Saying that an employee is suitable for the role advertised – you do not know what the job entails or what the new employer is looking for. If you must say this, qualify it by saying it is your opinion only.
Poor Performance or dismissed for serious misconduct
If an employee’s performance has been poor or they were dismissed for serious misconduct, refer specifically to the problems experienced with the employee (as well as any positive points, in the interest of balance). It is dangerous to leave them out if they are material. A bad reference is permissible, provided that it is not malicious and that you took reasonable care to ensure that the information is true – for example, by investigating any matter giving rise to the bad reference. If an employee has been dismissed, ensure that the statements made in the reference tally with the reasons given for the dismissal. If a Settlement Agreement is entered into, then the wording of the reference may be agreed as part of the terms, and you may have agreed not to make any derogatory comments about the employee.
It is important to avoid inconsistency – giving a reference in one case and not another, or giving only a factual reference to one employee and a full reference to another – as this could give rise to a claim of discrimination by a disgruntled employee. It is best to establish a policy that states whether you will give references or not and, if you do, who may give them and what they should contain.
If a former employee asks to see the reference, you do not have to disclose it. However, the new employer has to if:
- You have consented to its disclosure; or
- It is ‘reasonable in all the circumstances’ that the new employer should do so.
It is important that a disclaimer is included in the reference excluding liability for the accuracy of the reference are of limited effect – they will protect you only if they are reasonable.
Finally, references should be marked as private and confidential and state that they are only intended for the person to whom the reference is given.
If you are unsure, please contact us for advice on [email protected]