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:
- Discrimination: Particularly with comments about performance, attendance or sickness absence where there is a risk that these may give rise to disability discrimination.
- Defamation, or malicious falsehood: Where an untrue statement is made that disparages the reputation of a person or has adverse financial consequences. Referees must be able to justify and support any comments and show either that they are true, or that they honestly believe that they are true.
- Negligent misstatement: A referee can be sued if it provides an inaccurate reference. The referee will also owe a “duty of care” to the prospective new employer when providing a reference – claims for negligent misstatement can also be brought by the recipient for inaccurate references. Employers should also note that possible claims can result from a reference that is too good or omits something material. Especially if it later comes to light that an employer was aware of misconduct.
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:
- The reference is provided in accordance with any workplace policy regarding the provision of references, setting out who can provide them, in what circumstances and what can be (and should not be) included.
- If only providing a brief factual reference with dates and job role (which is the common practice for many employers these days), they explain that it is their policy to provide a reference only in this format.
- The reference provides a balanced overview of the employee (although it does not need to be full and comprehensive).
- The reference does not contain any inaccurate statements.
- The overall picture the reference gives is not misleading and does not unfairly present a poor image of the employee.
- The employee is aware of any complaints or performance concerns that are referred to in the reference.
- Any personal information or information about absence complies with the employer’s data protection obligations – the employee’s consent to disclosure can be an important factor.
- Comments on suitability for a new job are given with care because they may be less easy to justify objectively.
- The reference is marked “Private and confidential for the addressee only” and includes an appropriate disclaimer of liability.
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