Reference requests: the importance of getting these right

A request for a reference might be the last thing employers expect to receive when an employee leaves on less than amicable terms. Most reference requests will be received from a prospective employer and, although there is generally no legal obligation on an employer to provide a reference, there are risks to be aware of if a reference is provided. A recent tribunal case has highlighted how important it is for employers to get a reference right when there are negative implications behind the employee leaving.

In this case, the employee was absent from work for two substantial periods. The first was during 2009 and 2010 when he and his partner lost a baby and again in 2012 when he suffered from shoulder pain and hearing loss in one ear. The employee was made redundant by his employer and made a number of tribunal claims. The employer conceded the dismissal was unfair and a claim for disability discrimination is continuing.

The claimant was unemployed for three years before receiving a job offer from a prospective employer in 2015. The company that offered the job approached the former employer for a reference. The reference stated that the former employer would not re-employ the claimant and provided details of his periods of absence. The reference said nothing positive about the claimant although he had been employed for 8 years. The job offer was subsequently withdrawn.

At tribunal, it was found that the reference to sickness absence was overestimated to a substantial degree and provided an inaccurate figure to the potential employer. Also, as the organisation had failed to provide any favourable information about the employee or his performance this created a false and misleading impression of his career and amounted to a detriment. As the potential performer had withdrawn the job offer because of the reference, the employee’s losses and compensation were payable.

What this means for employers:

• As there is generally no obligation to provide a reference, employers can have a policy that no references will be provided. Although this is the safest route for the business, it may not always be the most practical, especially where the ex-employee was a good member of staff.
• When a reference is provided, the employer owes a duty of care to the individual concerned and the recipient of the reference. Employers should take reasonable care to ensure the information in the reference is true, accurate and fair.
• There is no requirement for a reference to be detailed or comprehensive. Instead, the reference can provide brief details of the start and end date of the employment and the roles the individual carried out. This type of statement, however, needs an additional statement explaining this style is company policy to avoid any negative implications on the employee.
• Although the employee has left, discrimination laws cover former employees so employers must not provide a discriminatory reference. Any comments based on performance, attendance or sickness absence should be assessed before they are included as they may be discriminatory on the grounds of disability.
• The risks of providing a false statement are high, especially where the prospective employer withdraws the job offer, as the reference provider will be responsible for the individual’s losses. Compensation awards for discrimination claims are also uncapped so providing a discriminatory reference can be very costly.