What can you say and not say in references about employees?

Peninsula Team

November 25 2013

As an employer you are under no legal obligation to provide a reference for a former employee, however there may be exceptions in certain industries. If you do choose to do so, you have a responsibility to ensure references for a former employee are accurate and reliable. Providing a reference you cannot support can leave you in a position to be sued by your former employee for not getting a job or other financial losses. Poor references can also lead to a former employee claiming damages providing they can prove the reference is inaccurate and has caused them a loss. Employers should implement a consistent reference policy in order to avoid any claims of discrimination or victimisation. When giving references many employers provide facts of employment history as references, which can include the position of the employee, salary, etc. If, as an employer, this is your policy this should be made clear so a new employer does not assume a lack of information is insinuating poor performance. If you choose to provide a fuller reference you should not:
  • Claim that the employee is suitable for their new role as this is subjective;
  • Provide information in such a way that gives incorrect inferences to the new employer;
  • Omit vital information that a new employer would expect to receive.
If an employee was dismissed, problems experienced during their term of employment could be mentioned, however, not in a malicious manner. The Equality Act 2010 protects former employees from victimisation where an employer doesn’t provide a reference due to an employee bringing about employment proceedings or providing evidence within such. However currently the EAT is providing conflicting authorities concerning post-employment victimisation and we are awaiting legislation to make the position on the issue clearer. It is vital to follow up references as an employer as it provides you with a degree of proof that a potential employee is suitable for employment. Aside from qualifications and employment history you have nothing substantial to support the employment of this candidate apart from the words of those who have previously employed them. Many employers make a job offer conditional on receiving satisfactory references. Call the Peninsula Advice Service for further follow up and assistance. Contact 0844 892 2772.

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