When providing a reference for an employee, it’s important to:
- Get written and signed consent
- Be consistent in the types of information you give
- Avoid providing any information which could be disputed as unfair or incorrect
- Comply with data protection laws
- Mark all references as Strictly Private and Confidential
What to include in a reference?
The requesting employer is likely to have specified what information they would like you to provide.
This will usually include:
- Job title
- Employment dates
- Salary on leaving
They may ask for more details than this, but you should be cautious about providing additional information.
If you provide lots of information in one employee’s reference, for example, and very little in another’s, this could be viewed as less favourable treatment.
Additionally, the more information you provide, the more scope there is for an employee to dispute something.
As a result, it’s usually a good idea to adopt a standard approach and only provide basic references.
If you decide to take this approach and only provide standard references, you should include a statement in your references that this is the case. This way the other employer is not left in any doubt as to your reason behind not answering all their questions.
How to provide a reference?
We recommend providing written references over verbal ones.
In writing, it’s usually easier to remain neutral and objective. In conversation, if you have any frustrations with the employee, these might come across in how you talk about them. If a job is then withdrawn, even if what you said isn’t written down, the employee could still claim that you have acted unfairly.
Even if you have acted entirely fairly, you run the risk of being dragged into a dispute over what you did or didn’t say. By only providing references in writing, you cut down on this risk.
If you do provide additional information by phone, keep a note of the information you have given so that you can use it as evidence if there is ever a dispute over what was said.
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Is giving a reference a legal requirement?
In most sectors, it’s not a legal requirement to provide references, but most employers will still give them.
And if you are giving references, there are two laws you need to be aware of:
- The Equality Act 2010
- GDPR and The Data Protection Act 2018
The Equality Act 2010 gives employees the right not to be discriminated against during the course of their employment. This also covers the pre-employment checks, such as the employment reference. Under this Act, employers have a duty of care to provide fair and accurate information.
The Data Protection Act 2018 gives an individual various rights relating to data held about them, including access to the data and the requirement to give consent before data about them is passed to a third party. It also provides that information held on them must be accurate and up to date.
As an employer you have a legal obligation to protect confidential information for all your staff, including ex-employees. This means that you should only provide a reference for an employee if they have provided proper, written consent.
We would also recommend that you mark any reference as Strictly Private and Confidential and make it clear that it is an employment reference, so that it will not be disclosed to the employee if they make a Subject Access Request.
Seeking consent before providing a reference
You should always make sure you view a signed consent form from an employee before providing a reference.
Never take the prospective employer’s word for it that they have written consent, make sure you see it for yourself, or ask the employee to sign your own consent form.
Also make sure you keep this form with the employee’s file.
If you’re asked to provide information classed as ‘special category data’ under data protection laws (e.g. racial or ethnic origin, political opinions, religious or philosophical beliefs, health) you’ll need to make sure the employee has provided specific consent for this information to be shared. It’s very rare to include this information in a reference, however.
Can you refuse to give someone a reference?
Many people think that there’s a legal obligation to provide a reference for employees who are leaving, but this is only the case in certain industry sectors.
In most cases, there’s no legal requirement to provide a reference. However, it’s very uncommon for employers to have a policy not to give references.
What’s most important to bear in mind if refusing to give references is that you take this approach for all your employees, otherwise you could be seen as treating some employees more favourably than others.
Giving a reference for a bad employee
Another myth surrounding references is that you can’t provide a bad reference. However, there is nothing in the law to prevent you from giving a bad reference, so long as you have the employee’s permission to provide a reference in the first place, and that the reference you give is factually correct.
Of course, if you’ve adopted a standard procedure to only provide basic factual details, you can provide this information without straying into a discussion about the employee’s performance or attitude.
Also important to note is that you don’t provide a falsely positive reference for a bad employee as the prospective employee could sue you for failing to exercise your duty of care.
How to avoid problems when providing references
- Don’t be misled by employers asking for specific information. If it’s not your policy to provide a detailed reference, don’t make an exception for one individual as they could challenge this, claiming unfair treatment. Adopt a consistent approach.
- Limit the number of people permitted to provide references so you can keep better control of what references are going out and that they comply with your policy and data protection laws.
- Avoid making derogatory and unfounded statements. These are likely to cost the employee their new job, which could mean they sue you for damages.
- If you include a reference to a weakness, make sure you don’t refer to something that was never highlighted to the employee before they resigned. This will reduce the risk of an allegation that you have given an unfounded statement.
- If you’ve made agreements to provide a specific reference as part of a legally binding settlement agreement, you should make sure that a different “standard” reference is not provided in error.
- Never give “off the record” references. These kinds of conversations can be used as evidence of unfair treatment and put you at risk of a legal claim.
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If you’re at all unsure about what to include in an employee reference, our HR consultants can help.
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The content of this blog is for general information only. Please don’t rely on it as legal or other professional advice as that is not what we intend. You can find more detail on this in our Terms of Website Use. If you require professional advice, please get in touch.
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20th Sep 2019