Giving out references on former employees or seeking out information on new staff should in principle be a straight forward activity. However, when providing references or acting on references received, employers should be aware of the real risk of being sued for damages and costs, and in the worse case scenario, being taken to court for reasons such as defamation, discrimination or unfair dismissal.
Worryingly, in a recent tribunal case, new ground was broken, where for the first time an ex-employer has been held liable for statements made about an ex-employee that were not part of a reference. So great care should be taken by any company considering making comments, verbally or in writing, formally or informally, about a former employee.
When providing references, each organisation has a legal duty towards ex-employees and other employers to provide accurate and fair information which is neither misleading nor biased. Companies have a number of options but first and foremost, they need to decide whether the information they will be providing is of a personal or professional nature. If employees are approached to give personal references it is advised not to use headed paper and job titles and clearly indicate on the letter that this is a personal reference.
Secondly, they should decide who will be responsible for responding to reference requests and ensure that all managers and Directors are aware of this so that each request is handled consistently and within these guidelines.
Finally, companies need to choose the format – some may opt not to provide references altogether but this must be consistently applied and communicated to all employees. However, the preferred option is to provide a reference which only includes or confirms facts which cannot be disputed like job title and start and end dates. These avoid the inclusion of any personal views or information that could be disputed and lead to possible claims from the ex-employee but also does not breach responsibilities to the new employer.
It should be noted that employees have the right under the Data Protection Act to see any information that is held by the employer relating to them including references from previous employers and therefore, companies should apply the golden rule of only writing information that they would not mind their exemployee seeing and which cannot be disputed.
- Do not provide information in a way that would infer or give the wrong impression of an employee
- Do not express personal opinions about the employee
- Do not state that an employee is suitable for the role advertised
- Do not be inconsistent across references for different employees
For guidance on providing a reference contact Anita Wynne at Beststart HR on firstname.lastname@example.org or Tel: 01438 747 747.