Our clients are often asking us what their obligations are when it comes to providing references for ex-employees, and here are our top tips.
When providing references, employers owe various legal duties both to the new employer and to the ex-employee.
New employers can claim for financial loss caused to them by relying on a reference that is too good or misses out something important.
Ex-employees can claim compensation under a number of headings if they believe a reference about them is too poor, including discrimination, victimisation, defamation or negligence.
Stay on the right side of the law by following our top tips for references.
- Generally, there is no obligation to give references, except where not doing so would amount to discrimination or victimisation. There may also be a duty to provide a reference in the financial services sector.
- If giving references, ensure that they are true, accurate and fair, and do not give a misleading impression overall.
- Stick to facts within your own knowledge of the employee. Don’t give an opinion on suitability for a job you don’t know about.
- If raising concerns in a reference, make sure these have been raised with the employee previously.
- Make sure that any criticisms of performance or attendance are not disability related.
- Be consistent in your approach to references. Put a policy about giving references in your staff handbook. This will help defend allegations of discrimination.
- View references received with a critical eye before acting on them; they may be discriminatory and make your company guilty itself.
- Do not provide references “to whom it may concern”. Address references to an individual and mark them “strictly confidential, for attention of addressee only”.
- Avoid oral references. If you do give them, make sure they are in the spirit of any written ones.
- Always add a clear legal disclaimer at the end of any written reference to prevent potential negligence claims from new employers.
- Consider implementing a clear policy of verifying dates of employment and job title in references only. Explain that it is your policy to do so, and stick to it.
If you would like further information, have an issue about references, or would like us to draft a reference policy for you, our experienced team of employment lawyers would be pleased to assist.