You can get in all sorts of trouble if you get references wrong.
There is no general duty imposed on employers to provide a reference to a former or current employee.
However, as always, the law is not that straightforward and there are certain exceptions, for example:
- You may have a term in a settlement agreement which provides that you will respond to reference requests.
- There may be an express term in the employee’s Contract of Employment that states that you will provide a reference.
- You will need to see if there any sector-specific rules. For instance, in some highly regulated sectors, a reference will be required for a person to conduct certain functions.
The dos and donts
If you do provide a reference, you should take reasonable care when writing it. It is essential to ensure that the information you supply is fair, truthful and accurate.
The law does not tell you what the reference should include or how long it should be. If you wish, you can make it simply brief and factual, just specifying the key basic details, such as job title and start and end dates of employment. Alternatively, you may give a full or comprehensive reference. However, you will need to take care that you do not write things that could be misleading or give off the wrong impression.
In any case, make sure you can substantiate what you can write. If you can’t, you can leave yourself open to challenge and claims. You could face claims by the employee for suffering loss, for example, a prospective employer may decide to withdraw a conditional job offer due to the reference you provided.
You must be consistent. Don’t provide one employee with a brief reference and another with a full reference as this could lead to claims of discrimination.
Beware of discrimination and victimisation
Make sure that you do not refuse to give a reference because of one of the protected characteristics specified in the Equality Act, for example sex, race, age or religion. This would be considered discriminatory.
A refusal to provide a reference may also result in a claim for victimisation if done in retaliation for an employee having brought discrimination proceedings or given evidence against you in the past.
Get it right
Don’t get it wrong and face claims from current or former employees regarding defamation, negligence or malicious falsehood. Mistakes could mean you could end up having to pay damages.
If you have concerns, always seek legal advice at the earliest opportunity.
