Is there a duty to provide a reference?
There is generally no obligation under English law to provide an ex-employee with a reference.
However, as with all rules, there are exceptions (for example in the financial services sector).
Also, an employer will be acting unlawfully if it 'victimises' an ex-employee by refusing to provide him/her with a reference, when it would otherwise do so, because he/she has (for example): alleged or brought a claim for, or given evidence or information in connection with a claim for, unlawful discrimination; or blown the whistle on the employer's unlawful actions. It is also worth noting that if an employer refuses a reference based on a suspicion (rather than actual knowledge) that the employee has done one of these things, that is sufficient to land the employer in difficulty. The same is true if it refuses the reference because it knows or suspects that the ex-employee intends to do one of these things.
So if you normally give references to ex-employees, but you refuse to do so for a ‘difficult individual' who has raised discrimination issues, this decision might be regarded as unlawful.
If you provide a reference, what rules are there on its content?
If you do provide a reference, you must take reasonable care in its preparation and ensure it is fair, accurate and not misleading.
If an ex-employee does not get a job because of an unfair negative reference, you could find you are liable to pay him/her damages.
An employer who relies on a negative reference to deny a person a job may also find itself acting unlawfully.
This does not mean you cannot ever make negative comments in a reference; but it does mean that, if you do so, you must take great care with the context and be able to justify your decision. You must ensure that the reference you give is fair, accurate and not misleading, but you should also be mindful of the possibility of unwittingly committing unlawful discrimination. For example, take care when asked to answer questions about the attendance and performance of someone who has had significant periods of disability-related sickness absence or other difficulties at work because of a disability. Straying away from basic facts and into subjective assessments are particularly risky in this context.
Because of the risks associated with providing negative feedback in a reference, it can be tempting for employers to give a good reference simply to avoid any backlash from the ex-employee. However, bear in mind that it is not just the ex-employee who has potential claims in connection with references; a new employer could also sue you if they suffer as a result of relying on a reference that you provide which is, for example, misleadingly good.
Remember that references can be misleading not only in what they say, but also in what they omit to say and in the amount of weight given to positive versus negative comments. Also, inserting a disclaimer at the end of a reference will generally not avoid liability.
How do you avoid reference problems altogether?
For all the above reasons, many employers have a policy – applicable to all staff – of providing basic factual references only (eg start/end dates and job title) and, importantly, of refusing to enhance these written references with oral references. Consistency of treatment regarding all staff is key and managers must be trained to apply the employer's policy, particularly if they are approached through telephone calls from potential employers.
Provided an employer makes it clear that this is its standard practice for all staff, it does not usually restrict the ability of staff to find new work. Whilst many prospective employers can be persistent in seeking further information, it is important that individuals resist the temptation to deviate from a 'tight lip' policy, even 'off the record' (which has no legal status at all).
For advice on specific matters please contact a member of the Withers Employment Group.
Click here for further information, including the recent Pnaiser
v NHS England and Coventry City Council case_._