Work references

No legal duty to provide

An employer is not legally bound to provide a reference and the employee or ex-employee has no legal right to demand one. If, as a result of refusing to provide a reference, the applicant fails to secure new employment the ex-employer can not be held responsible nor have any legal action taken against them. If the reason for not supplying a reference is related to the employee having given evidence or being involved in an employment tribunal case then the employer leaves themselves open to a discrimination charge (again!).

References must be honest

Providing the information contained within the reference is accurate, or is genuinely believed to be accurate and is given without malice it can not be made the grounds for a libel or slander action. If an employee has been dismissed and the reference provided is inconsistent, either good or bad, with the reasons given for dismissal it may help the employee show those reasons were untrue. If, as the result of an incorrect or negligent reference, the new employer or employee suffers a financial loss that they would not have if the reference had been correct, the provider of the reference may be liable to the new employer or employee in negligence.

It is permissible to give a 'bad' reference as long as the details are true, accurate and fair. In general it is not recommended to give a 'bad' reference, it is always safer to refuse to give one having in mind the discrimination provision mentioned earlier. Due to the increase in the number actions being brought against ex-employers and there being no legal duty to provide a reference many businesses are making it a policy not to provide them.

Reference contents

Above all the contents of a reference must be true, accurate and fair and not give a misleading impression. The information given need not go into great detail and is not only restricted to the questions asked.

A typical reference might contain the following points but not restricted to:

• Length of service
• Job title and job duties
• Ability to perform job duties
• Honesty and integrity appraisal
• Reason for leaving

If you want to give the employee a 'good' reference by 'bumping up the scores' so to speak, have in mind that the reference you are providing is potentially misleading and, whilst of help to the employee in gaining employment, it may be grounds on which you could be sued by the new employer.

Confidentiality

The provider of the reference can legally, under the terms of the Data Protection Act, refuse to disclose it's contents to the employee when requested to do so. The receiver of the reference is under no legal duty either to disclose the contents should he not want to.

However, even with explicit instructions not to disclose the contents, the receiver can, if they determine it is reasonable to do so, disclose all the contents and not be held responsible for any resulting action being taken by the employee. So, if you don't want the employee to see what you have written about them, don't write it.