Requesting a reference

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There are a number of legal risks associated with the provision of references: for the employer providing the reference, along with the prospective employer receiving it. And, of course, for the employee concerned. Reference-related cases have been brought before the courts on many occasions.

Requesting a reference Except in limited circumstances, there is generally no obligation on an employer to request a reference for a potential new employee. An offer of employment that is made conditionally upon the receipt of at least one satisfactory reference must form part of the stated offer of employment, if it is to be contractually binding – there is no contractual relationship until the satisfactory reference is received in these circumstances.

Providing a reference Generally, there is no legal obligation to provide a reference either. If providing one, the employer will be legally responsible for the contents of any reference provided on its behalf. If giving a telephone reference, a contemporaneous note should be made. Clearly, telephone references can be subject to dispute. Care must be taken to ensure that a refusal to provide a reference is not discriminatory (for example, a refusal to provide a reference because the employee has raised a previous complaint of, say, age discrimination, could result in a claim of victimisation).

Potential liability There is no obligation to provide any detail in the reference or for it to be comprehensive. However, care must be taken to avoid potential claims from the individual, such as:

If providing [a reference], the employer will be legally responsible for the contents of any reference provided on its behalf

Practical tips When providing a reference, employers should make sure that:

Jason McKenzie

Jason McKenzie has joined us as a Director, specialising in a range of legal areas including employment, commercial and public sector work.

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