Supplying a reference

Duty to provide a reference

An employer doesn't have a legal duty to provide a former employee with a reference, unless it is expressly stated that one will be provided in the employee's employment contract or a settlement agreement, or it's required under the rules or regulations of a regulatory body.

However, if an employer refuses to provide a former employee with a reference, then they may have a claim for discrimination or victimisation if the refusal is based on discriminatory grounds.

Therefore, wherever possible, you should provide a reference if a request has been made.

Data protection requirements

All personal information you provide is subject to the UK General Data Protection Regulation 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: 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: A legitimate interest can be used where processing an ex-employee's personal information is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the ex-employee's personal data that overrides it. You won't have a legitimate interest but the addressee 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. You should take legal advice if you intend to rely on this.

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'.

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

Obligations to others when providing a reference

Any reference should be compiled using reasonable care and skill and its contents should be true, accurate and fair and must not be misleading or made in bad faith.

You and/or the individual giving the reference have a duty of care to the former employee and the new employer to ensure that its contents are accurate and not misleading. Otherwise, you risk a claim against you by the new employer for compensation due to negligence or deceit, or a claim by the former employee for compensation for the loss of the chance of employment.

You should also ensure that any statements made in the reference (including opinions) are not defamatory or made maliciously, as this may result in a claim by the former employee for damages.

When 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 of the reference will need to provide evidence to support their view.

Content of a reference

You're not under a duty to provide a fully comprehensive reference even if you agree to supply a reference following a request by a former employee or potential new employer.

You can determine the contents of the reference. A very general reference can be limited to factual statements such as dates of employment, position held, a brief outline of the duties performed and the reason for leaving, if known. However, the contents of a reference could be tailored, depending on the seniority of the former employee.

We recommend that you should, where possible, agree the wording of a reference with your employee before they stop working for you and, at the same time, get their written consent for it. This can then be sent whenever a request for a reference is received.

General rules when writing a reference or other correspondence about a former employee include:

• Taking legal advice before communicating a decision refusing to provide a reference.
• Identifying the person in your organisation with authority to draft references and other correspondence regarding former employees and ensuring that this is properly communicated to all staff.
• Not referring to or mentioning spent criminal convictions, claims made against your organisation by the former employee or any information regarding their health or any disability.
• Not including any facts that the writer is unsure of. If in doubt, leave it out.
• Qualifying any opinions or statements, e.g. 'I know of nothing that would lead me to question X's honesty'. If you include an opinion (which is not generally recommended), then be sure to include the reasons why you have that view. This is because if it is later challenged, you will need to provide evidence to support it.
• Marking references 'confidential' to the addressee. Ensuring the content is consistent and not discriminatory.

Unsolicited references

It's usually not advisable to provide unsolicited references addressed 'to whom it may concern'. If 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.