There are numerous legal issues for employers to bear in mind when responding to reference requests.  Getting it wrong could result in legal liability for discrimination, negligence or data protection breaches. For more information on the legal issues to consider regarding references, read our article: a quick guide to references.

Top tips

  • Be consistent in your approach to giving references i.e. don’t give a full reference for one employee and a basic one for another. Ideally, have a policy in the staff handbook -so staff know what to expect – and stick to it!
  • Consider whether there are any statutory or industry rules which apply to your sector or the individual’s particular role which must be observed regarding references.
  • Don’t forget to check whether there are any contractual agreements with the individual, such as a settlement agreement, which may affect the content of any reference given.
  • Mark references, “private and confidential, for attention of addressee only”. Make sure you have a named person to send the reference to, don’t simply write, “to whom it may concern”.
  • Avoid giving oral references if you can. If not, ensure you record a full note of what you have said, and that this is in line with any written reference.
  • Stick to the facts that you know and can prove about the employee.
  • Don’t give an opinion on the individual’s suitability for a job you don’t know about.
  • If you do refer to a concern in the reference about the individual, make sure this is something that has previously been raised with them.
  • Ensure that any criticism of performance or attendance does not spring from a disability related reason – otherwise this could lead to a discrimination claim.
  • Always include a disclaimer in the reference to guard against any potential negligence claims. For example, “This reference is for the use of the addressee only and is true, fair and accurate to the best of [the employer’s] knowledge as at the date of this letter. However, [the employer] does not accept liability for any errors, omissions or inaccuracy in the information set out above or for any loss or damage that may result from reliance being placed upon it by the addressee or any third party.”
  • Remember data protection obligations. The reference will contain personal data and may contain sensitive personal data so must be processed lawfully. Ensure that the individual has given their consent to a reference being provided to the third party requester. If in doubt, contact the individual to confirm they are happy for the reference to be sent.
  • If you have requested a reference remember that the Data Protection Act will also apply to you. Make sure you are compliant as regards processing the data. For example, is the reference stored securely, who will have access to it, how long will it be kept and will it be deleted after an appropriate period?

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