With reference to…

Why are employment references so short and unhelpful?  There is a common view that if an employer writes a negative reference, then their ex-employee can take legal action against them.  There is also concern that a very positive reference about a mediocre employee could lead to the future employer taking legal action for being misled!  In actual fact it is very difficult for an ex-employee to take legal action against an employer, and it is only really successful if the employee can show that the reference is inaccurate and the employer knew that to be so.  For libel claims they need to show that there was a malicious intention in the inaccuracies.

The main points to be aware of when requested to provide a reference are:

  • You are not obliged to provide any reference (unless you agreed to do so in a contract or agreement – for example in a compromise agreement).
  • Any reference that you do provide must be in substance true, accurate and fair and you have a duty not to make defamatory comments or those which amount to malicious falsehood.
  • You may want to comment about performance, skills and knowledge while the individual worked with you.  You should not make reference to spent convictions or sickness records.
  • It is probably best to avoid stating any views of their suitability for the new role.  You might want to include some sort of disclaimer to say that the facts are true to the best of your knowledge but that the future employer must rely on their own assessment regarding the suitability of the individual for the new job.
  • It is becoming increasingly common only to provide the bare minimum – confirming job title and dates of joining and leaving.  If you do this, then it is best practice to be consistent in your approach and provide the same for everyone.  If you are in a regulated environment and bound by the Financial Services and Markets Act 2000 then you have specific obligations with regard to what you must provide on your references to other regulated employers.
  • Under the Data Protection Act, generally you as an ex-employer do not have to provide details of the reference to the employee.  However, the new employer may have to disclose your reference if the individual becomes their employee.

And if you are seeking to hire someone new, how do you find out more information?  It is always worth writing to the past employer and requesting a reference.  You could include a series of questions or a rating scale. to make it easier for them  While the ex-employer is not obliged  to provide any information, they sometimes do choose to do so.  Often ex-employers are more willing to provide details over the phone – so it is worth giving them a call to find out more.  However, phone references still need to be true accurate and fair.  Ultimately it has to be your decision.  What you should aim to do is have a structured and robust recruitment process and then use the probationary period to assess the new employee’s suitability for the role, rather than relying on someone else’s opinion.

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