This blog has been written from the perspecive of a manager giving a reference. The principles also apply where the manager is receiving a reference. This blog illustrates the thinking and obligations on an departing employee's firm.
There is no statutory or moral requirement upon an employer to provide a reference for a former employee. The exceptions are where the former employer has expressly agreed with the employee that a reference will be given as part of their negotiated exit conditions. Sometimes also there can be an implied contractual term that a reference will be given. If, for example, an employer normally provides references for leavers, then this creates an implied term. Also, by refusing to give a reference, this might lead to claims of discrimination on grounds of sex, age, race, sexual orientation, religion or disability.
Whilst there’s no actual obligation to give a reference, it’s nonetheless important that any request for reference is not ignored. A new employer could theoretically make a negligence claim against a previous employer if a request for a reference is ignored, and if this conceals a serious issue that causes the new employer a loss. A previous employer also has a duty not to make defamatory or maliciously false comments. Where the employer believes the information is correct, and the information is provided without malice, then there is no risk of a claim of libel.
All things considered, TimelessTime suggests that it is probably worth giving a reference but care should be taken over its content.
The role of references in recruitment
Always remember that references are of low predictive validity - they don't predict well if someone can actually do a job. They should therefore only be used to corroborate candidate-provided information. Their most important function is to confirm that the candidate is who they say they are. Always stick to fact when writing a reference.
In order to avoid libel it is best to provide the requestor with a basic set of data. Many employers opt for providing a letter with basic information, ignoring more in-depth questions often asked by new employers.
Your standard letter might include:
- Name of employee;
- National Insurance Number (to confirm identity - there may be two people with the same name);
- Date of joining and date of leaving;
- Job title and brief description of main duties;
- High level statement of sickness absence e.g. number of days sick over last year
- Number of weeks of parental leave taken (if relevant);
- Stated reason for leaving (though if this was not a dismissal, the employee may not actually give you the real reason)
Any reference you provide must be accurate and honest. If you provide false information, the new employer may sue on grounds of misrepresentation. To avoid this, ensure that it is facts that are provided to the new or prospective employer. If in doubt, only provide data on points 1 – 4 above.
Remember also that an employee can ask for disclosure of documents under the Data Protection Act 2018. This means that an ex-employee can ask the new (or prospective) employer) for sight of references provide by previous employers. Whilst there are some exemptions from this related to references, it is best to assume that employee will potentially see the information.
Finally, before responding to a request for a reference from a potential future employer about a former employee, it's worth asking the employee for their permission during the exit interview. This takes care of any issues that might otherwise arise under the Data Protection provisions.