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References – Is honesty the best policy?

08 Oct 2018

Employers regularly receive requests for references for ex-employees and, when considering the potential legal pitfalls, it is important that they stay on the right side of the law. In light of new guidance from ACAS, Tom Clarke, who recently joined the expanding Employment Team at Hay & Kilner Law Firm, sets out some of the dos and don’ts to consider when responding to requests.

Are we obliged to provide a reference?

No – there isn’t usually a legal requirement to provide a reference and, ultimately, an employer can decide to provide as little or as much detail as they want. However, all employees should be treated consistently. Ideally, there should be a clear company policy on when references will be given and what level of detail will be provided.

What can we include?

It is absolutely essential that references are a true, accurate and fair representation of the individual. When providing a reference, it’s best to stick to basic, objective facts about the applicant, including:

  • start and end date;
  • job role and a brief description of duties;
  • an explanation that it is company policy to only provide brief, factual references (if in fact this is the case); and
  • a disclaimer of liability.

What should we not include?

We would usually recommend avoiding the following:

  • providing any subjective comments or opinions about the applicant that may sway the new employer’s decision either way;
  • speculating on whether an employee will be suitable for a new role, especially where that role differs from their previous position; and
  • any sensitive personal information.

As well as avoiding sensitive personal information, it is important to consider data protection issues more generally. For example, has the employee consented to you providing confidential references about them? Does your data protection policy refer to the provision of references?

Tom Clarke

Also, care should be taken to avoid any allegations of discrimination. Commenting on an ex-employee’s long-term health problems or sickness absence records for example could lead to a disability discrimination claim being pursued.

Are there any potential risks?

Providing a negative reference could obviously lead to an applicant being unsuccessful and they would then have the right to request a copy of the reference. If it proved to be inaccurate or misleading then the individual could have grounds to bring a claim. Similarly, providing a positive reference for an employee who does not then perform to the standards expected by the new employer may then lead to a claim from that new employer.

What else should we be doing?

We recommend that employers adopt a company-wide policy in respect of references to ensure a consistent approach. Creating a template document for responding to requests is always a good starting point with only certain individuals (such as the HR department) having the authority to issue them.

For more information on any of the above, or how we can help your business, please contact Tom Clarke, or call 0191 232 8345.