Helen O'Brien writes:

1. Legal Requirements

Apart from those industries that are subjected to requirements issued by regulatory bodies, there is no legal obligation on employers to provide references for existing or past employees. However, while there may be no general legal requirement, employers may decide that they wish to give references. How can employers avoid the common pitfalls and consequent difficulties should they decide or be required to give references?

The issue of references has been the subject of case law. This means that where an employer decides to provide a reference for existing or past employees, they owe a duty of care to that particular employee to ensure that any reference is:

• True (to the best of their knowledge)
• Factually accurate and in no way misleading

2. Duty of Care

Additionally, a referee will also owe a duty of care to the person they are providing the reference to. In the event that an employer does not provide a reference that is true, they can be liable for damages. This could include a claim for loss of earnings by an employee who was unable to secure new employment because of a misleading reference or a claim for any financial loss suffered by the new employer who recruited an employee on the back of an inaccurate reference.


3. The Importance of Truth

It is therefore vital that employers give very careful consideration to the content of any reference or responses to any specific questions asked before committing it to writing. The content should be factual and completely honest and truthful and should never mislead the reader. For example, employers should avoid giving a problem employee a glowing reference simply to get rid of them, as they may face a claim for damages from the new employer, when it comes to light that they were not such a perfect employee after all. Similarly, employers should be discouraged from giving an employee a bad reference so as to prevent them from leaving their current employment.


4. Accuracy

An employer should check that any facts or figures included in the reference are accurate. Where possible this should be done by referring to documentary evidence. It is advisable for employers to avoid making subjective comments that cannot be backed up by documentary evidence. For example when asked to comment on the employee’s attendance – an employer should give factual information such as statistics on the employee's attendance record as documented on the employee's personnel file rather than making comments such as poor or unsatisfactory. Furthermore, employers must ensure that they do not act in breach of the Data Protection Act 1998 by disclosing personal sensitive data such as medical information without the employee’s express written consent.


5. Opinions

On occasions, an employer may be asked to give their opinion on an employee or their suitability for a particular role. If an employer chooses to do so, extreme caution must be exercised. It should be clear that the comments are just opinion and they should steer clear of any remarks that cannot be substantiated if challenged. Employers are well advised to avoid the use of humour or sarcasm. Not only could this be viewed as unprofessional, more importantly, it could be open to misinterpretation.

It will help employers when drafting references to re-read through what they have put and to bear in mind that anything they have written may be open to scrutiny in a court. In which case they will have to be able to demonstrate that what was put is true and accurate.


6. Informal Approaches

Employers are well advised to avoid “off the record discussions” over the phone. While an employer may feel that they can speak freely without being quoted in future if they say this is “strictly off the record” – this may not necessarily be the case. Furthermore, there is a risk that any comments could be misinterpreted or misconstrued and in the absence of a written record, it could put an employer in a difficult position.


7. 'Confidentiality'

Finally, while many employers mark references “private and confidential” it is unlikely that they will be able to rely upon the confidentiality so as to avoid the employee from obtaining a copy.

It is important for employers to ensure that they treat reference requests consistently so as to avoid exposing themselves to a risk of unlawful discrimination. It is sensible for the employer to adopt a policy in this regard and ensure the policy is adhered to.