Generally there is no legal obligation on an employer to provide a reference for an employee or ex-employee and employers are therefore generally entitled to refuse to provide a reference. However, an employer’s policy on references should be consistent or it could lead to allegations of discrimination or breach of the implied term of mutual trust and confidence.
Care must be taken to ensure that a refusal to give a reference is not discriminatory because of any of the protected characteristics under the Equality Act 2010 (“EqA”): age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
If the employer does provide a reference, then it owes the employee and the intended recipient a duty to take reasonable care to ensure the information it contains is true, accurate and fair, and does not give a misleading impression.
An untrue statement that disparages the reputation of a person in the estimation of right thinking members of society may amount to defamation.
Under the Data Protection Act 1998 (“DPA”) employees have extensive rights of access to personal information held by their employer, and this could include references received from former employers, even when supplied in confidence. Where it is unclear whether information contained in a reference is either known to the individual or confidential, the recipient should contact the referee and enquire as to whether they object to the reference being provided to the employee. Even if a referee says that they do not want their comments disclosed, the recipient may be obliged to provide the reference if it is reasonable in all the circumstances to comply with the employee’s request without the referee’s consent. The employer should consider whether it is possible to conceal the identity of the referee, although often an individual will have a good idea who has written the reference.
Under the DPA information about an employee’s health is “sensitive personal data” and an employee’s explicit consent must be given before an employer can disclose information about an employee’s sick record or reasons for periods of absence.
Practical Tips on providing a reference:-
“This reference is given to the addressee in confidence and only for the purposes for which it was requested. It is given in good faith, but neither the writer nor [name of employer] accepts any responsibility or liability for any loss or damage caused to the addressee or any third party as a result of any reliance being placed on it.”
This blog has been prepared as general guidance and should not be relied upon without obtaining specific advice. If you require further assistance please contact Audrey Spencer in our Poole branch at firstname.lastname@example.org or on 01202 725400.