Does an employer have to provide a reference for a former employee?
References are usually given by a present or former employer to a prospective employer. Responding to a request for a reference may involve giving subjective views about the performance or character of the individual, the permanency of the employment and remuneration.
Are employers obliged to give a reference? The simple answer is that they are not. Generally, there is no legal obligation on an employer to provide a reference for an employee or ex-employee and employers are therefore generally entitled to refuse to provide a reference. However, in practice, employers often give and rely upon references.
An employer’s policy on whether or not to give references, and what sort of information to include, should be consistent or it could lead to allegations of discrimination or breaches of the implied term of trust and confidence.
Where an employee or ex-employee has previously brought discrimination proceedings against an employer or made allegations of unlawful discrimination, a refusal by an employer to provide a reference may result in a claim of victimisation.
If an employer decides to provide a reference, it owes the employee or ex-employee and the new employer a duty to take reasonable care to ensure the information it contains is true, accurate and fair, and does not give a misleading impression. There is no obligation to provide any detail in the reference or for it to be comprehensive. Hence, in practice, it is commonplace for employers to provide strictly factual references which state little more than the employee’s job title and dates of employment.
Six top tips when giving a reference by ensuring:
- It should be provided in accordance with the workplace policy.
- It is consistent with the real reason for any dismissal.
- The reference does not contain inaccurate statements.
- It gives a balanced overview of the employee and is not misleading.
- Comments on suitability are given with care as they may be less easy to justify objectively.
- It should include a disclaimer.
Having a clear policy about circumstances in which references will be given will help employers defend any allegations of discriminatory treatment.