A troublesome employee has handed in their notice and has asked for a reference to give to their new employer. We usually give references to all employees but in this case the employee has recently become a poor performer and has timekeeping and absenteeism issues which we haven’t raised with the employee to date. Should these details be included in the reference?

The drafting of references is becoming somewhat of a legal minefield for employers and care should be taken when giving references in respect of employees. The above scenario is a typical example of when certain information should not be included in a reference. For example, the employee in question has a poor performance record but has not been subjected to any proper procedures notifying them of the issues with their performance. The advice in such a case is to omit such details from the reference. Employees ought to be aware of their generally performance rating and should also be informed of any issues effecting their performance such as absenteeism issues or bad time keeping.

The principal aims of the reference should be to confirm facts and to provide opinions. Opinions should be clearly stated as opinions and ought to be based on facts known to the employer. Employers giving references should take reasonable steps to ensure that any references given are accurate.


Check list

1. Check the employee’s personnel file.

2. Speak to daily supervisors.

3. Note the difference between fact and opinion.

4. Verify facts i.e. qualifications, dates of commencement, attendance record.

5. Substantiate opinion.


Sensitive Data

Employers should never include any “sensitive personal information” in a reference. Sensitive data includes information pertaining to an individual’s race, colour, sexual orientation, religion, political opinions, membership of a trade union, criminal record and includes medical information in relation to the employee.

In the event that an employee was absent from work on sick leave for a lengthy period, an employer may include the fact that the employee was absent for twelve weeks on sick leave, however, the employer may not disclose the illness preventing the employee from returning to work.

Oral References

Where possible, employers should avoid giving oral references. The law applies equally to oral references, however, where a reference is given over the phone, an employer has little control over what is interpreted from his or her statements. Where it is unavoidable to give a telephone reference the following guidelines, at the very least, should be adhered to:-

A. Suggest to the caller that you will call them back shortly in order to give yourself time to examine the file of the employee, or if appropriate have a discussion with the employee’s direct Supervisor;

B. Confine your comments to accurate facts;

C. Do not make statements that you would not be willing to make in writing;

D. Make a note of the time and date of giving the reference, the name and job title of the caller and record a brief summary of the facts given. This information should then be faxed or e-mailed to the caller to confirm the conversation and should also be placed on your previous employee’s personnel file.


Employee Reference Policy

In light of recent UK case law, employers are advised to have an Employee Reference Policy in place. The Policy should address the following:

A. The legal background.

B. Data Protection Principles i.e. access requests and sensitive personal data.

C. Aims of reference.

D. Examples of differences between fact and opinion.

E. Oral references.

F. Contacting Referees.

The Policy should be circulated throughout the Company so that anyone who may be asked to give a reference or may be asked to help prepare a reference is fully briefed of the legal implications with regards to input.

The important note for employers is to ensure that you are confident that anything which appears in a reference is justifiable and can be backed up by accurate facts. Employers should be aware that an employee can easily seek a copy of their reference from you or any prospective employer by making an access request under section 4 of the Data Protection Acts 1988-2003, therefore, anything included in a reference can potentially be accessed by the employee. The key is to keep references short, to the point and accurate.