Focus On: Providing References

It is inevitable that at some point you will be asked to provide a reference for a previous employee. There is no legal duty to provide a reference but if you do it is important that what you provide is factual and fair. References need to be balanced, provide a ‘bad’ reference that you cannot justify and risk a case of defamation or discrimination from the ex-employee. Provide a poor performer with a glowing reference and risk being sued by the new employer for the loss. There is a danger in the current climate that references are so invaluable that there is no merit in seeking them.

Today we provide top tips on how to provide a fair reference without putting yourself at risk:

  • Ensure that you comply with any special rules for your sector. Often professional bodies for each sector will provide templates and support for this.
  • If you want to express a negative point, do so objectively. Ensure that you have the facts to back it up and that these facts are accurate. Ensure that the reference is not misleading in any way.
  • Be consistent, if you provide a reference for your employees but then decide not to for an individual (perhaps to avoid expressing a negative point) the employee may be able to claim against you for this. Either provide references for everyone or no one (check that the individual is not contractually entitled to one before declining).
  • If you choose not to supply a reference, you must respond to the request and state it is your policy not to provide them. Ignoring the request could imply there were problems with the employee.
  • Create a template for your organisation, often its simply enough to state the facts such as job role, start date, end date etc. State that it is your policy to only provide a simple factual reference to avoid implications you are hiding something.
  • Avoid agreeing to a positive reference as part of a settlement agreement if this is in fact not the case. Even with a settlement agreement, the reference must be representative of the individuals’ performance. A positive reference should never be used as a point of negotiation.
  • Don’t cite or comment on unproven allegations.
  • Ensure that you are consistent, often having one person write (or approve) references before they are issued is a good way to manage this.
  • Always mark the reference ‘Private and Confidential; For the Addressee Only’ to avoid any risk of personal data being shared inappropriately.
  • Remember under a Subject Access Request, the individual can get a copy of the reference.

We can help you manage reference requests and ensure that the information you provide is fair. Please get in touch if you have any questions.


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