The Fundamentals of Giving References

If you are giving your employee with a reference, you have a duty of care to them and the person you are sending the reference to. You must make sure that any statement that you make is “in substance, true, accurate and fair”.

For most sectors, there is no legal duty for you to provide a reference. However, there are exceptions to this, for example if you do business in the financial sector you are legally required to provide a reference when asked to do so.

That said it is important to realise that a refusal to provide a reference could result in a discrimination complaint. An employment tribunal could consider the refusal of a reference to someone as victimisation.

Before providing an employee with a reference it is important to familiarise yourself with the legal requirements surrounding doing so. The basics are outlined below and our Your Responsibilities guide explains more.

When writing a reference for an employee you need to:

  • Be sure to provide a reasonable and balanced reference that is fair and not misleading. Make sure all of the statements you make are based on verifiable facts
  • Take care to verify any information on which you base the reference
  • Bear in mind that an employer who provides an inaccurate reference could potentially be sued for defamation or negligence
  • It is important to treat all requests you receive for references equally
  • Make sure that all references you send out are marked as ‘confidential’
  • When asked about absenteeism address this matter within the guidelines
  • Be careful about what you leave out to avoid being sued for negligence
  • Avoid providing a verbal reference

The following points also need to be considered when writing a reference.

When asked about your ex-employee’s absenteeism, you cannot mention periods of absence that relate to those protected under the Equality Act 2010. This includes absenteeism due to gender reassignment, pregnancy, disability or maternity leave. You can only reference periods of absence covered by the Equality Act when your former employee gives you express permission to do so. In addition, that permission has to be in writing. Ensure that you do not give out any kind of sensitive information about your former employee without their written permission.

Always give a reference to someone who has a protected characteristic. Failure to do so could be seen as unlawful discrimination. Amongst these protected characteristics is disability, age, marriage or civil partnership status, race, religion, gender reassignment, maternity or pregnancy or sexual orientation.

Ensure that you do not refuse to give a reference in retaliation against an employee. This is especially important if the employee has previously claimed discrimination or has supported someone else’s unfair dismissal claim. Refusing a reference in this situation could be seen as victimisation by an employment tribunal, which is a form of unlawful discrimination.

To learn more about providing references contact us at Hylton Potts by calling 0207 381 8111 or by sending us an email.