Reference requests: Eight things every employer should know

Providing a reference for a former employee should be done with the correct procedures in place to avoid disgruntlement

Many recruiters may ask for a reputable reference from their candidates former employers and is a common practice today.  However, there are risks involved as outlined by Sarah Anderson from Personnel Today.

Here are 8 factors to consider before giving a reference:

  1. There is no legal duty to provide a reference

There is no obligation on an employer to provide a reference about an employee or ex-employee, irrespective of whether the request came from the employee, a prospective employer or a third party such as a bank or landlord.

However, there are a few exceptions, for example when dealing with approved persons in regulated financial roles.

  1. References must be truthful, accurate and fair

Employers must take reasonable care to ensure that the information provided in the reference is true, accurate and fair and that it does not give a misleading impression.  If care is not taken and false information is provided, the employer could find itself being sued for negligent misstatement and ordered to pay compensation.

The reference should also not be discriminatory and must not amount to victimisation.

Employers can be liable for discrimination against a former employee even if it occurs after the employment has ended.

  1. Have a written policy on giving references

Employers should prioritise creating a written policy on providing references.

The policy should detail when a reference will be provided, who within the organisation may provide it and what information the reference should include.

Many employers have a policy of providing a standard reference including only limited information, for example dates of employment and positions held. This limits exposure to claims.

  1. Settlement agreements

When an employer receives a reference request, they should check if there is a settlement agreement in place relating to the particular individual.

Settlement agreements often contain the wording of an agreed reference, which the employer agrees to provide in respect of any reference requests made regarding the individual.

  1. Employee consent to reference

An employer is likely to have to process the employee’s or ex-employee’s personal data, as regulated by the Data Protection Act 1998 when writing a reference.

Employers therefore do need to confirm that the individual has consented to a reference being provided.

  1. Sickness absence

If sensitive personal data such as physical or mental health information is to be provided, employers must get explicit consent from the individual prior to preparing the reference.

Revealing the number of days an employee has been absent, but not the reasons for the absences, will not require explicit consent. However, this does run the risk of disability discrimination.

  1. Disclaimer

It would be advantageous for employers to include a disclaimer of liability arising from errors, omissions or inaccuracies in the information provided in a reference.  The circumstances in which a disclaimer will be effective are limited, however it would be an advantage to include one.

  1. Sending the reference

Written references should be addressed directly to the individual who has requested it and marked “strictly private and confidential” and “to be opened by the addressee only”.

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