The Sunday Times - Business Doctor: Poor worker doesn't merit a reference

Peter Done: Managing Director and Founder

May 23 2016

LP Writes: I have an ex-employee who is asking for a reference, however during their time with me they were a very poor worker. Can I refuse to provide a reference for this employee or at the very least provide a bare minimum reference? Employers are not usually under a statutory obligation to provide a prospective employer with a reference, but most employers often do so as a gesture of goodwill. However as an exception to this, employers who are regulated by the Financial Conduct Authority or the Prudential Regulation Authority are under an obligation to respond in reasonable time to a reference request by providing all relevant information they hold, if the employee concerned was an “approved person”. Even if your business is not regulated by these bodies, you may still have to provide a reference if this is a contractual agreement or if it was agreed in a settlement agreement. When providing a reference, you should be aware that, although providing a negative reference is not unlawful, the law which protects employees from discrimination on the grounds of any protected characteristics still apply even after employment has ended. This means that employees can make a claim for discrimination against you and potentially the new employer if they believe the information in the reference discriminates against them. Under data protection legislation, employees have a right to obtain any data stored on their file with the new employer, including any references they have received. In line with that, it is advisable to exclude any information relating to any protected characteristics they may have. For example, if the employee has a disability which caused high absence levels, any such disability related absence should be omitted. Only information which is non-discriminatory, factual and accurate should be provided in a reference. You must not give a misleading impression, as you have a duty of care to the prospective employer to give true and accurate information. If you do not comply with this, not only can an employee bring a claim, but also a prospective employer can sue if the reference is negligent or careless and causes the prospective employer financial loss. There are no requirements regarding the length of the reference. You can provide as little or as much information as you wish. Some businesses follow a policy to provide a brief factual reference stating only the employee’s length of service and their position. This is a good measure which will reduce the risk of any claims.

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