An employer’s duties are directed in two areas:
1. The duty to provide a fair and accurate reference for an existing employee that arises under the contract of employment.
A breach of this duty is a breach of contract and can give rise to constructive dismissal claims. Obviously this is not a concern in the case of an ex employee.
2. The duty to ex-employees to provide a fair and accurate reference. This duty arises under the common law of negligence.
3. The duty to provide a reference to the prospective new employer that is true and does not mislead by omitting something.
Fair and Accurate
Thankfully this does not mean the reference has to be comprehensive in terms of being a summary of the employee’s responsibilities, performance and conduct.
It is sufficient that the information given is accurate and that the overall impression is fair.
Accuracy is something that can be assessed on an objective standard, ‘fairness’ is more subjective and difficult.
Comments about performance are obviously acceptable, but if they are negative they should be linked to a contemporaneous document such as a performance appraisal.
If you repeat what has been said in an appraisal and the employee did not raise complaint at the time, this is unlikely to form the basis for a valid legal challenge.
Negative comments about conduct are equally acceptable provided they can be backed up (evidenced) by documents written at the time (e.g. warning letters).
A conduct or performance issue that was not worthy of formal action and/or being recorded in writing should not be included in a reference response.
There are two reasons for this:
- it cannot be evidenced,
- it is unlikely to be fair if it was not considered serious enough to be dealt with formally at the time.
The reason for the employee’s employment terminating is also relevant (in relation to the duty to provide a reference to the prospective new employer that is true and does not mislead by omitting something).
This is so particularly if they were dismissed, in which case the fact of dismissal and the relevant category (e.g. misconduct, capability, redundancy, etc) should be given.
If the reason was gross misconduct this should be alluded to also.
Equality Act 2010
It is sensible to consider discrimination issues when addressing both the company’s policy to references generally, and its practice in each individual case.
If employee A receives a reference that is detrimental when compared to employee B, and there is a difference in protected characteristic, this can lead to inference of discrimination.
The employer then has to justify the different treatment on grounds that do not relate to the protected characteristic.
It is best to define how the company will respond to references.
If it is possible to set out some parameters detailing what kinds of information will be given this will assist because it will tend to facilitate an equal and fair approach in all cases.
Some employers refuse to respond other than in very fact specific terms (e.g. dates of employment, job role, salary, termination date). This is fine only insofar is it is applied uniformly. It is also likely to cause employees and ex employees difficulty when applying for roles in regulated sectors.
Often references are given ‘without responsibility’ or with a longer form disclaimer.
These cannot safely be relied upon to restrict or avoid liability so it is best not to place any reliance on a disclaimer.
Whilst references tend to be given ‘in confidence’ and are not amenable to a Data Subject Access request, an ex-employee may receive a copy of the reference from the potential new employer. Furthermore, if there is a claim for breach of contract or negligence, the court will order disclosure of the reference.
Accordingly, references should always be written in the expectation that the ex-employee concerned will see the reference.