Do I have to give a former employee a reference?
The above question is one which we are frequently asked since some employers will, understandably, feel slightly anxious about controlling the fate of an ex-employee. This article focuses on the employer’s legal obligations to provide references to former employees.
Sometimes, when an employee resigns or is dismissed, they can often leave on sour terms with the employer; for whatever reason, so employers may stand firm on not wanting to provide a reference to enable the employee to gain new employment. Generally speaking, there is no law which requires an employer to give an employee a reference (factual or otherwise) once they have left the business, unless an exception or other consideration is at play.
Therefore, should an ex-employee ask their former employer for a reference, the employer can simply decline. However, like all things in life, there are obvious exceptions to this rule.
If the employer has adopted and implemented a business-wide policy which states that they will give factual references to all employees, it would be a risk to refuse an employee a reference. Refusal to give a reference may bring pleadings for discrimination claims (for not providing a reference because of a protected characteristic i.e. commonly: race, sex, disability). Even though, the employee no longer works for the employer, protection against discrimination may extend even after the employee has left if the refusal of a reference is ‘closely connected’ to the employment relationship.
If the employee has previously brought proceedings against the employer in connection with discrimination, and then leaves the business, yet the employer refuses to provide a reference (perhaps in connection with the old proceedings), the employee may have grounds to plead ‘victimisation’, which can be a stand-alone claim in the Employment Tribunal.
A common example of where employers must provide a reference is when they are contractually obliged to do so. Typically, this can be present in the contract of employment or in a settlement agreement upon an exit from the business. The wording of a reference in a settlement agreement is usually agreed upon prior to it being signed off; so each party understands its rights and obligations.
When references are given, the employer remains liable for the content and accuracy of the reference since it is being provided on their behalf, therefore it is advisable that employers have a policy in place establishing what level of detail is inserted within any reference. There is no need for the reference to provide detail although it must not give a ‘misleading interpretation’. Furthermore if a reference is given the employer is required to ‘exercise reasonable care’ to ensure that facts stated in the reference are accurate and that any opinions stated were the opinions that a reasonably prudent employer would have expressed on the basis of these facts.
If you have any queries in relation to giving or receiving references in connection with an employment relationship, or would like to implement a reference policy within your business; give our team of solicitors a call on 01924 379 078 who would be happy to assist you.
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