A question I am often asked is”what can I put in a reference request I have received about a former or current employee” There is very established law that shows that an employer owes a duty of care to the employee and the business making the request so you must be careful when giving a reference.
Q. Does an employer have to provide a reference?
A. No, an employer is not obliged to provide a reference for existing or previous employees unless there is an express or implied term to that effect in the employment contract. However, it is unusual for an employer to refuse to provide references and a refusal could mean that a prospective employer may draw his or her own adverse conclusions about the reasons for the refusal. Any refusal may not be on discriminatory grounds.
Q. Does a reference have to be in writing?
A. No, a reference may be requested by telephone or by email, either instead of or in addition to any written reference. Most employers request written references, either in a general form or by asking specific questions. However, some employers may wish to verify information by telephone as this may be considered a more reliable way of obtaining information.
Q. What information should a reference include?
A. It should be fair, accurate and give an honest overall opinion of the employee. The reference should be based on fact and contain only information which can be independently verified. Employers should be cautious about providing personal opinions on the employee’s suitability for a post, which cannot be backed up by concrete evidence. A reference should include information on the employee’s start and end dates in the post; sickness, timekeeping and disciplinary records; reason for leaving and any additional comments.
Q. Is there any information which should not be included in a reference?
A. Employers must not include any information in a reference which may be viewed as discriminatory. This may be on the grounds of disability, sex, race, religion, sexual orientation or age. If an employer does provide a reference, s/he has a duty of care to the employee to ensure that the information is not false or defamatory to the employee. Be careful about statements that are made that are not in the reference. There is also a recent case of McKie v Swindon College where for the first time an employer has been held liable for statements made about a former employee that were not part of a reference. Mr McKie worked at Swindon College from 1995 to 2002. When he left, Swindon College gave him an excellent reference. In 2008 Mr McKie was working at the University of Bath. As part of Mr McKie’s job he was required to liaise with and visit his former employer, Swindon College. After a few weeks working at the University of Bath, Swindon College sent an email to Bath University stating that Mr McKie could not be accepted on to their premises, citing “safeguarding concerns” and “staff relationship problems” that had arisen during his employment with them. They implied that he could have faced disciplinary action at the time he had left Swindon College’s employment. Bath University then dismissed Mr McKie based on this information. Mr McKie did not have 1 years service so could not claim unfair dismissal. The implications for businesses is that the duty of care extends to any statement given to another business even made informally and not part of the reference process can have an impact that you can be held liable for.
Q.What could the former employer have done?
A. Judge Denyer QC considered the steps that he would have expected an organisation in this position to take and these were as a minimum, “a formal meeting, a formal discussion, a formal examination of the personnel record and, a formal recording of the processes that led to the taking of the decision”.
They should have adopted a fair procedure and a full investigation to show that they have acted in a fair and reasonable way.