Law guide: Employment

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Supplying a reference

Supplying a reference

Contents

How to supply a reference

It is good practice to provide references regarding the employment of current or past employees, when requested by another employer or potential lender.

Inaccurate or defamatory references

An inaccurate or defamatory employment reference can be the subject of an action for negligence or defamation against the employer and/or the individual author, and therefore the author of a reference owes a 'duty of care' to the person about whom it is written. Where the author of a reference is proven to have acted negligently, the subject of the reference does not have to prove 'actual loss' of employment, but only that he/she has lost a 'reasonable chance' of employment and thereby sustained loss. A duty of care is also owed to the recipient of the reference, who may be able to sue the individual referee and the employer for damages if the information contained in the reference is inaccurate or misleading.

Case law also indicates that a current or recent employee may have a claim for discrimination or victimisation, if the refusal to provide a reference is based on discriminatory grounds.

Writing the reference

There are two principal reasons for an employer requesting a reference for a prospective employee:

  • To confirm the accuracy of statements made in his/her application
  • To provide opinions as to the candidate's suitability for the post in question, and his/her potential for the future

In responding to a reference request, the facts about an individual's employment history and any opinion of his/her ability to undertake a new role should not be confused. If an opinion is offered regarding an individual's abilities, the reasoning for such a view should be made clear. If challenged, the author would need to provide evidence to support his/her view.

In writing a reference, the author should always indicate how long he/she has known the individual, and in what capacity, and ensure that the facts stated about an individual are correct. The author should not include any facts of which he/she is unsure - if in doubt, leave it out.

If asked to express an opinion on an issue about which the author cannot make an unequivocal statement, for example, regarding an individual's honesty and integrity, it is appropriate to use a phrase such as 'I know of nothing that would lead me to question X's honesty.'

As a general rule, only comments on an individual's performance or ability that have already been the subject of discussion with him/her should be included.

References should be marked 'confidential' to the addressee.

A reference should contain the following disclaimer in its final paragraph:

'In accordance with our normal practice this reference is given in good faith and in confidence, without legal liability on the part of the author or the company.'

Under the Data Protection Act 1998, individuals who make a Subject Access Request have a right to see references written about them by their current or past employer, and those writing references should take this into account.

Care should be taken not to refer to spent criminal convictions in references.

Telephone or verbal references

Although requests for telephone or verbal references are frequently received, such requests should be declined other than in exceptional circumstances, since information given in this way may be misinterpreted in its transmission to the interview panel. If, exceptionally, a verbal reference is given, steps should be taken to verify the identity of the enquirer, and notes should be kept of the conversation. Where a verbal reference is given on behalf of an employer, the person giving the reference should not make any statements that he/she would not be willing to make in writing.

Unsolicited references

It is generally inadvisable to provide unsolicited references addressed 'to whom it may concern'. If exceptionally, such references are provided, they should be limited to factual statements such as dates of employment, sickness record, capacity in which employed and reason for leaving, if known.