Law guide: Employment

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Supplying a reference

Supplying a reference

Contents

How to supply a reference

Complying with data protection requirements

All personal information you provide is subject to the General Data Protection Regulation (GDPR) and the Data Protection Act 2018. Very briefly, that means you must only process the information fairly, transparently and only if certain lawful reasons apply. As the reference will contain personal information about the ex-employee, you should only send it to the new employer based on one of the following reasons:

  • Consent: This means that the ex-employee consents to you giving the reference to the new employer. This is the most likely reason, as they'll probably need it to secure their new job. However, make sure you have their consent in writing before you supply the reference to the new employer. Their consent should specifically authorise you to provide the information contained in the reference. Consider giving the ex-employee an incomplete copy of the reference. This way they can specifically list the information they consent to you providing. They must give their consent freely given in order for it to be lawful (i.e. you can't force them into giving it).
  • Contractual obligation: This is usually a clause contained in a settlement agreement between you and your ex-employee in which you agree you to supply a reference (sometimes a template of a reference is attached to the agreement). Where you receive a request for a reference from a new employer and the ex-employee hasn't contacted you to send a reference, consider contacting them before sending it, as they may have a reason for not wanting a reference to be sent. Otherwise, you risk breaching data protection laws.
  • Legitimate interest: very broadly, this means you or a third party have good reasons for sharing/accessing the ex-employee's personal information. However these legitimate interests can be overridden if there is a good reason to protect the ex-employee's personal information. In this context, you won't have a legitimate interest but the new employer and/or the ex-employee may have, as they will be a 'third party'. It is not clear whether the Information Commissioner considers this to be a suitable ground for providing a reference. Also, you would need to perform a legitimate interest assessment. In any event, the ex-employee may not want you to provide a reference for them, in which case this may not be a suitable lawful ground to rely on as their interest may 'override' the interest of the party who wants the reference.

Normally, you don't have an obligation to disclose the reference to the former employee. However, they could see the reference if they send you a 'subject access request'. However, you may not have to provide it if the reference was marked as 'confidential'.

For more information about your data protection obligations, see the Data Protection section.

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 they have 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. In other words, there are risks if you give undue praise or undue criticism.

A current or recent employee may also 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 their application
  • To provide opinions as to the applicant's suitability for the post in question, and their potential for the future

In responding to a reference request, the facts about an individual's employment history and any opinion of their 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 this view.

In writing a reference, the author should always indicate how long they have 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 they're 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 them 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.'

You must not 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 they 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.

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