Sam Purvis, Managing Director at The Compass Partnership, HR, employment law and learning & development specialists, discusses references and whether or not an employer is obliged to provide one to an employee who is leaving.
As a general rule, there is no legal obligation to provide a reference for employees leaving for a new job,; employers can decline to provide a reference if they wish to. But knowing whether to provide a reference or not and what information to include can often cause confusion and concern.
There are, however some exceptions to this rule. For example, certain roles in the financial services sector or candidates applying for a position at an academy or maintained school in England, where a reference is obligatory.
If there is an express term in the contract of employment to provide a reference for a departing employee, employers should oblige when requested although providing such an express term is entirely a choice for employers and not a legal requirement.
Complying with GDPR and Data Protection laws
Employers must ensure that they comply with UK GDPR and Data Protection legislation, as providing a reference will generally involve processing and sharing personal data.
Employers should take care not to provide confidential information about an employee as part of a reference unless they are sure that the employee consents to sharing this data. Particular care must be taken when an employer is processing any special category data – for example, concerning an employee’s sickness absence record.
What should a reference include?
The employer should ensure that the information contained in the reference is true, accurate and fair, and does not give a misleading impression. An inaccurate or misleading reference could lead to a potential claim for misrepresentation.
A reference will usually include factual information, such as the dates of employment, the job title and the role undertaken. The prospective employer might also ask for additional information such as timekeeping, the reason for leaving, disciplinary records and performance and absence records. They often also request information such as the employee’s honesty and trustworthiness. However, care should be taken when including information of this nature as it can often be viewed as the personal opinion of whoever is giving the reference.
What should not be included in a reference?
The reference should ideally be limited to the referee’s specific knowledge of the employee, rather than speculation about their suitability for the new role and personal character.
If an employer provides an inaccurate reference, includes some information that the employee did not know about, such as an impending conduct or capability allegation which results in the job offer being withdrawn, or declines to provide one because of a protected characteristic. The employee may have justification to seek damages and/or submit a tribunal claim, including a claim for discrimination in certain circumstances.
Minimizing the risks of giving a reference
To minimize this risk of disputes occurring and to maintain fairness and consistency, employers should ideally have a reference policy in place to ensure that proper consideration is given by all people managers before deciding whether to provide a reference or not and what information to include.
All references should be marked as private and confidential to the addressee only and should ideally contain a disclaimer of liability on the part of the organization and also the manager providing the reference.
To find out how The Compass Partnership can support your business with all its HR needs, email Sam directly at email@example.com or for more information on The HR Toolkit, visit www.compasshrtoolkit.com