October 3, 2018
Are you obliged to provide a reference?
No – there isn’t usually a legal requirement to provide a reference and, ultimately, an employer can decide to provide as little or as much detail as they want. However, all employees should be treated consistently. Ideally, there should be a clear company policy on when references will be given and what level of detail will be provided.
What can you include?
What should you not include?
At Hay & Kilner, we would recommend avoiding the following:
As well as avoiding sensitive personal information, it is important to consider data protection issues more generally. For example, has the employee consented to you providing confidential references about them? Does your data protection policy refer to the provision of references?
Also, care should be taken to avoid any allegations of discrimination. Commenting on an ex-employee’s long-term health problems or sickness absence records, for example, could lead to a disability discrimination claim being pursued.
Are there potential risks?
Providing a negative reference could obviously lead to an applicant being unsuccessful and they would then have the right to request a copy of the reference. If it proved to be inaccurate or misleading then the individual could have grounds to bring a claim. Similarly, providing a positive reference for an employee who does not then perform to the standards expected by the new employer may then lead to a claim from that new employer.
What else should you be doing?
At Hay & Kilner, we recommend that employers adopt a company-wide policy in respect of references to ensure a consistent approach. Creating a template document for responding to requests is always a good starting point with only certain individuals (such as the HR department) having the authority to issue them. Of course, if you have any specific enquiries, please contact Tom Clarke at Hay & Kilner.