10 Things Every Employer Should Know About Providing a Reference

As an employer, you may be asked by another business for information about an ex-employee.  You will need to decide how to respond to such a request.

Here are 10 things you should consider before providing a reference.

  1. There is no legal obligation on your business to provide a reference and generally you are entitled to refuse to do so.
  2. Consider providing a brief factual reference containing only the start date, end date, and job role.  This ensures that there can be no allegation of defamation or negligence.
  3. If you do provide a more comprehensive reference, include information on the following aspects of the ex-employee’s work: performance in the job, disciplinary record, honesty, timekeeping, absence record and reason for leaving.
  4. Ensure the information contained in the reference is true, accurate, and fair.  Your business owes a duty of care to both the ex-employee and the prospective employer.
  5. You may want to implement a policy that states which employees can give a reference.  Your business will be legally responsible for the content of a reference and you should ensure that your staff are aware of what is required.
  6. Treat ex-employees consistently. Your business is not allowed to treat certain ex-employees less favourably on the basis of a protected characteristic, such as age, sex or race.
  7. Take care when making comments about an ex-employee with a disability, particularly where the disability affected their performance, attendance or sickness absence. Negative comments could lead to a discrimination claim.
  8. If one of your employees provides a personal reference (as opposed to a reference on behalf of the business), it should not be on headed paper.  This ensures that the business is not held responsible for its content.
  9. Be careful not to exaggerate the qualities of an ex-employee.  You owe a duty to the prospective employer as well as the ex-employee.  If you provide an inaccurate reference then you could be sued for negligence.
  10. Consider agreeing the content of a reference in a settlement agreement.  This will often be in an agreed form and annexed to the agreement.

If you would like to discuss your policy on providing references, please feel free to contact Andrew Crisp.

Legal Advice for Employers