Must I give a reference?

Receiving a reference request for an ex-employee who you don’t think has positive qualities can leave you feeling in a tricky position. References are the subject of lots of myth and speculation in our experience. It is a myth that a former employer cannot refuse to give a reference and that they cannot give a ‘bad’ reference. Generally, there is no legal obligation for a former employer to give a reference however if you do, then the law requires that it be a true, fair and accurate representation of the individual. It must not be misleading or false. In certain very limited situations a former employer may be required by statute to provide a mandatory type of reference, for example, those in the financial services sector and in education in certain types of schools in England.

Employers must always comply with their duty not to act in a discriminatory manner, either in the content of the reference they give or in their decision not to give a reference.

If a ‘bad’ reference is given a former employer may be accused of defamation. If it is found to be false, the former employer may face a claim for libel.  In this case, the former employer would need to be prepared to justify and evidence the content of it in court. 

We can offer some tips to avoid the potential pitfalls on the topic of references. The simplest way to avoid an issue is to refuse the request, thus avoiding any potential conflict. However, you may feel that you wish to give a reference. If you do choose to provide one, here are a few tips:-

• Avoid any statements that can be viewed as subjective or opinion. 

Consider providing factual references only, usually, these contain simply an individual’s name, job title and their dates of employment.

• If you do not already have one then consider drafting and implementing a company policy on who can give references within your business and be clear that they can be dealt with only be HR. Make sure it is properly communicated to all staff.

• Ensure any reference does contain an appropriate disclaimer and state the purposes for which it can be used.

• Bear in mind that when giving a reference you will owe obligations both to the subject of the reference (the former employee) and the recipient of it (the potential employer).

Finally, do be mindful of the little-known duties you have under statute to provide information to the authorised officers of JobCentre Plus within certain deadlines. Failure to comply is a criminal offence.

Hibberts’ employment team can provide expert advice on how to protect yourself from claims and complaints when giving character and employee references. For more information, visit us at www.hibberts.com.