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“Damned if you damned if you don’t!” That seems to be the concern of many employers’ when faced with a request by a third party for a reference on one of your employees or former employees.

Whilst you maybe reluctant to give a reference the reality is the vast majority of employer’s seek references. Indeed they can prove to be a useful tool especially to verify facts. But that is all they should be used for. Relying on subjective opinion can be dangerous.

So during this litigious era exactly what are your obligations? Oliver McCann, Associate at Taylors Solicitors, Blackburn and Employment Law specialist, gives some much needed guidance.

Do I need to give a reference?
Generally speaking there is no legal obligation on you to provide a reference upon receipt of a request. However there maybe an obligation in the following circumstances:

• Where the contract of employment states that one will be given (whether expressly or by implication eg. by tradition)
• Where a promise has been made to a departing employee that one will be given
• Where there is a regulatory requirement such as in the Financial Services sector

Otherwise the decision is yours. You should consider the circumstances giving rise to the employee leaving and seeking new employment. For example if they have been bullied and harassed or lodged some other form of discrimination claim an inference may be drawn that your failure to provide a reference is associated to that ie. victimisation which could lead to a claim being brought to the Employment Tribunal for discrimination.

What is my duty when giving a reference?
Essentially not to give a misleading or inaccurate reference! There is an implied duty on a provider of a reference to take reasonable care in its preparation. The consequences of not doing so, is to face a claim in negligence from either the former employee or the new employer who has relied on the information.

Depending on the content of reference the individual may even allege defamation of character although such claims can be notoriously difficult to pursue.

Ensure that you have a policy in relation to the provision of references that applies to all and that you adhere to this. Differential treatment towards employees/former employees in relation to the provision of references may lead to inferences of discrimination and result in Employment Tribunal proceedings.

So what should a reference contain?
Whilst the temptation maybe to give an oral reference rather than to commit your reference in writing this is far more risky than providing a written reference!

The common law governing the content of references applies equally to oral references as it does to written ones. Should matters become contentious it is always preferable to refer to a document than to rely on peoples recollections of conversations. It is always open to an Employment Tribunal to draw adverse inferences in the absence of a suitable explanation. References should:

• Be factually accurate and true
• Contain a fair/balanced assessment (where given)
• Identify the nature and extent of the acquaintance of the referee
• Set out parameters upon which the reference is based

Note it is permissible to refer to an individual’s sickness record – this will not be a breach of the Data Protection Act 1998 (“DPA”)! Do not go further than this by giving a commentary on the reasons for the workers sickness as this may contravene the DPA in relation to disclosing sensitive data. It maybe worth including a caveat that the prospective employer should enquire with the individual about their sickness record if they have concerns, as there maybe a genuine and justified explanation available for what on the face of it may appear to be a poor sickness record.

Can an individual obtain a copy of a reference I have given or been given?
A reference will contain Personal information and so will be governed by the DPA. The DPA applies differently to those who have given a reference as opposed to those who have received one.

The provider of a reference does not have to give a copy of the reference if it has been given in confidence. There is a specific exemption under the act in this regard. It is therefore a matter for you.

However the recipient of a reference may be obliged to disclose some or part of the reference, even when given in confidence. More often than not you will have to carry out a balancing exercise of the interests if each party to determine the appropriate course of action. It would probably be wise to take legal advice if the provider of the reference remains insistent that the reference is not to be disclosed.

Key Action Points

• Create a policy for your organisation on the provision of references and make it known to your staff
• Ensure your policy identifies which individuals are authorised to give reference
• Put in place a safety net so that all proposed reference are vetted by a senior employee in the organisation
• Always try to liaise with the individual who is the subject of a reference request to check they are happy for you to proceed (consider addressing this in an Exit interview)

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