Giving References

Are employers required to provide a reference?

There is no legal obligation on an employer to provide a reference.  However, where a reference is provided, it has to be fair and accurate. 

Exceptions
There are some limited exceptions to the general rule that there is no obligation to provide a reference:

• Failure to provide a reference on the grounds of sex, sexual orientation, religion or belief, race, age or disability would entitle an employee to bring a claim for discrimination.
• Where the employee or ex-employee has previously brought discrimination proceedings against the employer, given evidence or information in connection with such proceedings or made an allegation of unlawful discrimination, a refusal to provide a reference may result in a separate and additional claim of victimisation.

Compromise agreements

The parties can agree a reference will be provided and agree the wording within a compromise agreement.  However, employers need to be mindful to retain the right to amend any agreed reference in light of further information they may obtain. 

An employer has a duty to provide a true, accurate and fair reference and so there could be difficulties if the employer discovers misconduct after entering into the compromise agreement.  It may therefore be appropriate to include in the settlement terms wording along the lines of "subject to any further information coming to our attention which we consider should be included in the reference, we agree to provide a reference in the following terms".

Liability to the employee/ex-employee

Discrimination
A referee must not provide a reference that is discriminatory on the grounds of sex, race, gender reassignment, disability, sexual orientation, religion or belief or age. It must also notvictimisethe employee or ex-employee, for example if they have previously complained of discrimination.

Defamation
Any disparaging statement made by one person about another, which is communicated or "published" could amount to defamation.  Where the statement is in a written reference it would be libel and if the reference was verbally given, it would be slander.

An employer cannot be successfully sued for defamation for the contents of a reference (even if its contents are untrue) provided it believed that the information in the reference was correct and the reference was provided without malice.  Referees should therefore be able to justify and support any comments made in a reference.

Malicious Falsehood
An individual may have a claim for malicious falsehood against a referee if they can show that the reference contains untrue words that were published maliciously.

Negligent misstatement
A referee can be sued for negligence or an inaccurate reference.

Breach of Contract
A claim for breach of contract could arise if no reference is provided where there is an agreement to provide one either in a compromise agreement or a contract of employment (whether express or implied). 

Liability to the recipient

Negligent misstatement
A referee can be sued for negligence or an inaccurate reference. 

Deceit
If the referee knowingly includes false information with the intention that the recipient would rely on it, they will be liable to the recipient for the tort of deceit. 

General duties if providing a reference

If the referee does provide a reference, then it has duties towards both the employee or ex-employee and the recipient to take reasonable care to ensure the information it contains is true, accurate and fair.  There is no obligation to provide a detailed reference but it must not be misleading.

Sensitive Information

Employers are often asked how many days absence from work an employee has had during the last year and it should be possible to provide this information. If, however, an employer is asked to provide information regarding the reasons for the employee's absence it should obtain the employee’s consent.

Disclosure of references

Employees have rights of access to personal information held by their employer and this could include access to references received from former employers or other referees, provided they amount to "personal data".

“Personal data” is data which relates to a living individual who can be identified

1. from the data, or
2. from the data and other information which is in the possession of, or is likely to come into the possession of, the data controller

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.

The employer must weigh the referee’s interest in having their comments treated confidentially against the individual’s interest in seeing what has been said about them.  However, it would be advisable for the employer should contact the referee and enquire as to whether they object to the reference being provided.

The DPA does not permit access to a reference provided by a current employer because of a specific exemption under paragraph 1, schedule 7 of the DPA.  Employees can apply to the receiving organisation for a copy of that reference, but the receiving organisation is entitled to take steps to protect the identity of any individuals referred to in the reference, including the author of the reference, for example by redacting their names.

Summary

• When providing a reference, employers have a duty to be truthful, accurate and fair and must not give misleading information as this could potentially lead to claims being made against them by both the ex-employee and the recipient of the reference. 
• Employers may choose to provide a factual reference.  This will include the dates of the employee’s employment together with their duties.  Employers may also wish to include further details together with a disclaimer. 
• If an employee asks to see a reference, employers should contact the referee to see if they mind them disclosing the reference.  Employers must weigh the referee’s interest in having their comments treated confidentially against the individual’s interest in seeing what has been said about them. 
• Employers should have a policy on providing references outlining who can provide them and what should be included.  If verbal references are permitted, a detailed note should always be taken of what was said. 
• If Employers obtain an unsatisfactory reference for an employee after they have commenced work, provided the job offer and/or contract of employment states that upon receipt of an unsatisfactory reference the employer may terminate the employment then it will have the necessary protection.  Employers need to be mindful that notice still needs to be provided to the employee unless the employee has given false information or has committed an act of gross misconduct.