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Reference: to give or not to give?

2.10.2014

Generally there is no legal obligation for a business to provide a reference for an employee or former employee or for that reference to be comprehensive.

However, an employer’s policy on references must be consistent to avoid allegations of discrimination.  If refusing to provide a reference, bear in mind that the refusal should not be based on one of the protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.  A refusal to provide a reference may also lead to a claim of victimisation if an employee has previously brought a discrimination claim against the employer, given evidence or information in a discrimination claim or made an allegation of discrimination against the employer.

Settlement agreements, where the employee agrees not to issue a claim against the former employer usually for payment of a settlement sum, often include a term stating that a reference will be provided in an agreed form upon request.  To avoid claims for breach of contract, make sure that these agreements are honoured and ensure that the agreed wording is used.  Any oral reference provided should not deviate from the agreed wording.

Employers should also be aware when providing a reference that they will owe a duty of care to both the former employee and the recipient of the reference.  Employers should therefore take care to ensure the information given is true, accurate and fair.

For these reasons employers are increasingly unwilling to provide anything more than a factual reference, that is to say a brief note of the employee’s start and finish dates and role.  It is best practice to include a statement in this type of reference that it is company policy to provide only
factual details, so that it does not reflect badly on the employee.

Employers may decide to provide a fuller reference, covering for example performance, disciplinary record, honesty or timekeeping and in these situations a disclaimer should be included.

Points to consider when giving a reference:

•  Discrimination: Comments about performance, attendance or sickness absence may run the risk of discrimination on the grounds of disability.  Disclosure of this information may also be an issue under the Data Protection Act.

•  Defamation: The employer must be able to justify and support comments and show that it honestly held the views.  It will be a defence to a defamation claim, even if its contents are untrue, if the business believed the information was correct and it was provided without malice.

•  Malicious falsehood:  Where an individual can show that the reference provider knew the words were untrue or did not care whether they were true or not.

•  Negligent misstatement: An employer could be sued for negligence if it provides an inaccurate reference either by the employee or the recipient if it is relied on and causes loss.

•  Deceit: If a business knowingly includes false information with the intention that it will be relied upon, the business could be sued by the recipient for deceit.

So in summary, whilst there is no obligation to provide a reference, if you do give a reference proceed with caution.  If you decide not to, make sure that the decision was made on solid principles and that you act consistently in all cases.

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