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In recent years providing a reference for a past employee has become a minefield. Many employers are confused about what they can and can’t say, with some even reluctant to give one because it may open a proverbial can of worms.

No legal obligation

Did you know that generally, there is no legal obligation to provide a reference and employers are entitled to refuse? However, there are some exceptions. In certain sectors, providing a reference is obligatory, for example, some organisations in the financial services sector and for candidates applying for a position at an academy or maintained school in England.

But unless you have a policy of not providing a reference to anyone, we urge you to provide one. And when you do, you need to make sure that you do two things:

  1. Take reasonable care to ensure the information is true, accurate and fair.
  2. Avoid defamatory statements and do not be malicious, negligent, negative or misleading.

Go basic

Often employers prefer to provide basic references which go into little detail beyond the employee’s job title, role, salary, role description and dates of employment. These can be given verbally, as well as in writing. And unless you have the employees’ consent and or supporting evidence, you should avoid commenting on sensitive information such as their absence record, dismissal or performance management issues.

My recommendation is to provide only brief, factual details and include a statement saying that ‘It’s our company’s policy to only provide basic reference details and that it should not be taken to be disparaging of the employee in any way.’

Can an individual see a copy of a reference?

Whilst references are given in confidence and must not be disclosed to anyone else, former employees have a right to access copies of certain information about them by making a “subject access request” under data protection laws. You have no control over whether a copy is provided. So again, I think it’s safe to assume when you are writing the reference that the employee will see it at some point in the future, so for this reason my advice is to make sure what you write is accurate, true and fair.

The reference process

If you have a large workforce, it makes sense to have a policy for dealing with references, perhaps even nominating one person within your organisation who can respond to them in a consistent manner to avoid claims of discrimination or victimisation.

How can I help?

We are often asked lots of questions about how to give references, these include the following:

  • What are the obligations in providing a reference?
  • What is best practice when providing a reference?
  • What are the legal requirements if you do provide a reference?
  • Do you have to give a comprehensive or detailed reference?
  • What is the potential liability for the employer in giving a reference?
  • Do disclaimers work in employment references
  • Are there any Data Protection Act issues when giving a reference?
  • How do you deal with outstanding disciplinary matters or absence in a reference?
  • Practical tips on providing a reference

If you want to know the answers, then please get in touch – call 01327 317537 or email caroline.robertson@actifhr.co.uk. We have recently produced a competitively priced Audio Guide for Managers on Giving References. It’s a practical recorded training course which comes with slides and a reference template. Businesses can use the resource multiple times, add it to new manager training, or as an essential training tool for existing mangers.