What obligations do employers have when providing references?

ACAS has published guidance for employers on providing references. The guidance reminds employers that there is usually no legal obligation to provide a reference, but that employers who give references must make them fair and accurate.

Amongst the guidance, ACAS points out that:

A previous employer can usually choose if they want to provide a reference or not, and how much information they want to provide.
A reference must be a true, accurate and fair reflection of the individual. References must not include misleading or inaccurate information.
When opinions are provided, they should be based on facts. References should avoid giving subjective opinions or comments that are not supported by facts.
References should not include irrelevant personal information.
If the job applicant believes a reference provided for them was inappropriate, they may be able to claim damages in a court, but the job applicant must be able to show that the information was misleading or inaccurate and that they have suffered a loss such as withdrawal of a job offer.

In a recent case, the High Court gave guidance on the standard of care that should be exercised by a reasonable reference writer. In that case, the reference contained negative opinions which were founded on an investigation and the conclusions of an investigation. Although the nature of the duty of care will depend on the facts of each case, the High Court identified common features of that duty, which are:

To conduct an objective and rigorous appraisal of facts and opinion, particularly negative opinion.
To take reasonable care to be satisfied that the facts set out in the reference are accurate and true and that, where an opinion is expressed, there is a proper and legitimate basis for the opinion.
Where an opinion is derived from an earlier investigation, to take reasonable care in considering and reviewing the underlying material so that the reference writer is able to understand the basis for the opinion and be satisfied that there is a proper and legitimate basis for it.
To take reasonable care to ensure that the reference is fair, in the sense of not being misleading either by reason of what is not included or by implication, nuance or innuendo.

Comment

There is generally no legal obligation on an employer (other than in certain regulated sectors) to provide a reference and employers may therefore refuse. There is also no obligation to provide any particular level of detail in a reference. In our experience, it is common for employers to provide basic factual references that only include the employee’s job title and dates of employment.

However, employers should ensure that they act consistently in deciding whether or not to give references and what information to include in references. A failure to act consistently could lead to allegations of discrimination, victimisation or (in the case of an existing employee) breach of the implied term of trust and confidence. Any untrue statement in a reference that damages the reputation of the employee could also lead to an allegation of defamation.

The employer will be legally responsible for the contents of a reference that is provided on its behalf. Employers should consider, therefore, whether to have a policy in place stating which level of management can give a reference and what it can include. Thought should also be given to whether managers or employees can provide personal references for ex-colleagues, as there is a risk that those references could be taken to be written on behalf of the employer.

Hincks v Sense Network Ltd

ACAS guidance

13 September 2018

If you would like to receive monthly employment law updates and news of our events, sign up for our email alerts.

LAST POST