Employee References

Contrary to popular belief, there is no general requirement to provide a reference for ex-employees, save in some regulated sectors, but if you decide to give a reference it is essential to give it due care and attention.  Both the recipient of the reference and the employee can bring claims if they suffer a loss where a reference is given without reasonable care to ensure that it is true, accurate and fair.  For this reason, it is increasingly common for employers to have a policy of giving purely factual references setting out dates of employment and job title. 

Include a disclaimer, set out that the reference is given in confidence to the addressee and if you are giving a purely factual reference, set out that it your usual practice to do this. It is safest to avoid commenting on suitability for a new role and to stick to information that is measurable and objective.

Be consistent with reference practice, ex-employees can bring claims for victimisation or discrimination off the back of an unreasonable reference, or if you fail to provide a reference for a discriminatory reason.  Having a policy in place can help ensure consistency, or at least make sure that managers understand what is acceptable.  Following on from this, set out who has the authority to provide corporate references.  A personal reference that is outside of company policy should make clear that it is a personal reference given by the individual and not a corporate reference.  If a personal reference is put on headed paper, there will be an assumption that it was sanctioned by the employer.

Be cautious about asking for, giving or acting on a reference which includes information about sickness or absence records.  If you withdraw an offer of employment because of information about sickness, potential employees may be able to bring disability discrimination claims.  If a reference throws up issues around sickness and you think it may affect performance in the role, discuss this with the candidate and consider any reasonable adjustments.

Remember to make offers of employment subject to satisfactory references, you will then be able to withdraw the offer if the reference is unsatisfactory.  If the offer is unconditional and you withdraw it after an unsatisfactory reference, you will need to pay the employee for the notice period to terminate the contract, even if they have not yet started work.