Writing a reference (or giving an oral reference) for an ex-employee can land you in legal hot water, but you don't want to prejudice your employee. Understand your rights and obligations when providing references, so you stay safe, but fair
First, make sure you know whether the reference you are giving is on behalf of your business, or a personal reference from you as an individual. If given on behalf of the business, then the business is responsible for what is in it.
If given on the business' headed notepaper, or via your work email account, it is likely to be treated as a business reference if there is a dispute. Consider introducing a policy that identifies who can give references, and whether they need to be 'signed off' by anyone else first.
What can go wrong when giving references
If you give a written or oral reference, you have a duty to take reasonable care to ensure it is true, accurate and fair and that it is not misleading - a duty that is owed to both the employee and to the new employer.
So if you provide a bad reference that you can't substantiate, you run the risk of your employee suing you for damages if they didn't get the job, or suffered some other financial loss, because of it. In a worst-case scenario, they could even bring an action against you for defamation or discrimination.
Care should also be taken if you agree what can be said in a reference as part of a settlement agreement, as you may be liable to legal action if you do not abide by this.
The new employer could also claim damages against you if you give a glowing reference for an employee who has not in fact been satisfactory, and that person goes on to perform badly in their new job.
What are my options when giving references?
1. Giving no reference
One option is to refuse, as a matter of policy, to give references for any employee - you are not under any obligation to do so unless your employee's contract of employment explicitly states that you will. But this is inconvenient for your employees and ex-employees.
Failure to give a reference, without any explanation, can also imply that you have had problems with the employee. This could give rise to claims that you have discriminated against them. They could also argue that you have broken the term of mutual trust and confidence that is implied in every employee's contract of employment.
If you have a policy of not giving references at all, respond to each request for a reference with a specific statement that it is not your policy to give them, to avoid misunderstandings.
2. Giving the bare facts
Many employers provide only bare facts - the position(s) held by the employee, salary and other benefits, and commencement and termination dates.
State that this is your policy on the reference you give, so that the new employer does not read anything into the fact that you have not provided fuller details.
3. Giving a full reference
Most full references include the bare facts, plus key responsibilities, an assessment of the employee's performance, views on their personal qualities relevant to the positions held, eg honesty, integrity, drive, etc, their timekeeping, and reasons for leaving.
The duty to take care to be true, accurate and fair, and not to be misleading, means you should avoid:
- Failing to respond to specific questions in a request for a reference without explaining why.
- Omitting key information that a new employer would expect you to disclose.
- Organising the information in a way that would give a reasonable person a wrong inference or impression of the employee.
- Saying whether an employee is suitable for the role advertised - you do not know what the job entails. If you must say this, qualify it by saying it is your opinion only.
If an employee's performance has been poor or they were dismissed for serious misconduct, refer specifically to the problems experienced with the employee (as well as any positive points, in the interest of balance). It is dangerous to leave them out if they are material.
A bad reference is permissible, provided that it is not malicious and that you took reasonable care to ensure that the information is true - for example, by investigating any matter giving rise to the bad reference.
If an employee has been dismissed, ensure that the statements made in the reference tally with the reasons given for the dismissal.
If the employee is senior enough, agreeing the wording of their reference with them may be part of a compromise agreement in settlement of their claims, leading to them 'going quietly'.
Your reference policy
Avoid inconsistency - giving a reference in one case and not another, or giving only a factual reference to one employee and a full reference to another - as this could give rise to a claim of discrimination by a disgruntled employee. It is best to establish a policy that states whether you will give references or not and, if you do, who may give them and what they should contain.
Requests to see the reference
If your ex-employee asks to see their reference, you do not have to disclose it. However, the new employer has to if:
- you have consented to its disclosure; or
- it is 'reasonable in all the circumstances' that the new employer should do so.
Take advice before giving any reference if it is important to you that your employee should not see it, or parts of it that you consider confidential. At the very least, you should make it clear to the new employer that you do not consent to disclosure of the reference, or the confidential parts of it, to the employee.
If the new employer is obliged to disclose the reference, generally they should take care not to disclose any part of it that relates to another person - ie, anyone other than the employee.
Disclaimers excluding liability for the accuracy of the reference are of limited effect - they will protect you only if they are reasonable. Attempting to exclude liability for a statement is likely to fail if it is something that an employer can be reasonably expected to know.
That said, you may wish to include a disclaimer in your references as a 'belt and braces' measure.
All references should be marked 'private and confidential', to make it clear that they are intended only for the person to whom the reference is given (the new employer for example), and must not be disclosed to, or relied on by, any third party - whether by your staff giving the reference, the new employer or, if they have sight of a copy, the employee.
Some employers include a specific statement in the reference that no third party is to rely on it.
Always take legal advice if in doubt.
Browse topics: Employment law