References giving

09 July 2019

From time to time, you’ll receive requests from your employee to write a letter of recommendation for them. In this guide, we explain what you can, and can’t, say from a legal point of view. Plus, we let you know if this you have to comply with a reference request.

Business reference letters

When a staff member leaves your business, the likelihood is they’ll want a job reference letter from you. This can have a positive influence on their future employment opportunities. Other businesses can see if you rate them highly. But what you may wonder is if you have to provide a recommendation upon request. The simple answer is no. You’re under no legal obligation to provide one. This is the case for existing, or former, members of your workforce. There are still a few things you should keep in mind about:

  • You should honour any written agreements that are in your employment contract.
  • Some industries require you to provide feedback, such as in financial services.

You can even establish a business policy about how to deal with requests. In your regulations, you may choose to offer them to every employee. Or you can make it clear you don’t provide them.

Writing your statement

If you’re happy to endorse your staff member, then you can go about writing them a work reference letter. When the time arrives to sit down and draft out a letter, what do you need to include? There's the potential for a long time to pass after an individual leaves your business. So you may want to ask for some details before writing the letter. This information can include:

  • Their job title within your business.
  • Duties they performed.
  • The start and end dates.
  • Who their line manager was.
  • An updated copy of their CV.

These details can remind you who the individual was and what you need to write about them. In your reference, include a body of text explaining the former employee’s skill set. This information can offer:

  • An elaboration on their skills.
  • Their strengths and weaknesses.
  • Your experiences of working with them (positive and negative).

You can mention their dates of employment and the salary they were on. But you should try and avoid general opinions, unless you can back them up with facts. To help save you time, consider creating a job reference letter template to help you. Whenever someone from your workforce makes a request, you can refer to your existing format to ensure you’re following the correct business procedure.

Providing negative feedback

What happens if you receive an employee reference request and you only have bad things to say? Remember, the point of a professional recommendation is to provide an accurate and truthful account of the former employee’s time with your business. This means you can write negative comments. However, you should do so in a tactful and carefully worded way. You could face legal consequences if you don’t provide a fair response. This is a negligent misstatement. It means your former staff member would need to prove:

  • You supplied misleading details.
  • What you wrote damages their chances of work.
  • You were negligent in your letter.

Former employees who think you discriminated against them in your statement can bring you before an employment tribunal.

Supplying a recommendation

A good business practice is to provide a written reference. You should also keep a backup of this in your records. But you can also make your statement over the phone. Other options include sending your comments via email or professional networking platforms such as LinkedIn. If you do choose the professional networking route, remember that these are visible online. Other professionals can see what you have to say.

The legal risks

To further explain some of the legal risks of writing a job reference, keep the following points in mind:

  • Discrimination: You need to write in a fair and consistent manner. Accuracy is also important—don’t make claims you can’t back up. But you also need to remain fair with who you provide statements to. Randomly providing them may come across as unfair, which could lead to a discrimination allegation.
  • Data protection: If you’re providing details about your staff members to other businesses, don’t forget about your legal requirements with GDPR. This is why having a business policy on references can help. You need a legal reason to supply personal information through consent. So, you can aim to have the former employee’s consent in writing. But you should also approach writing your statement without mentioning any personal details such as their health or sexual orientation.

You can provide a form to show this individual consents to you processing their data. If they expect to see what you’ve written, remember they don’t have a right to see your comments. But they can still ask their new employer to your statement. There's a legal term for this: subject access request. If they’re unhappy about your statement, they can then request a copy from you. They should complete this in writing directly to you. Should these issues concern you, there are four steps to follow that will limit potential issues:

  • Make sure you stick to GDPR laws.
  • Provide your feedback in writing and always keep a written record.
  • Ensure fairness and accuracy in your statement.
  • Establish a company policy that you can apply for everyone.

Recommendations from other employers

From your perspective, what happens if you want a reference for a job candidate? If they’re in work, the chances are you won’t get one from their current employer. If that's the case, what you can do is make a conditional job offer. With that, you can change your mind after hiring. For example, if their feedback is poor you can retract your offer of employment.

Want more help?

We can help you create a letter of recommendation policy for your business. Get in touch today on 0800 028 2420.

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