Reference requests - how to deal with them!

Are employment references legally required?

Employers are not legally required to provide references for current or former employees. 

Employers are only obligated to provide references if they are required to do so by contract, for example, in an employment contract or settlement agreement, or if the right has arisen through custom and practice.

There may be exceptions to the rule i.e. where references are required by the Financial Conduct Authority or Prudential Regulation Authority. In such cases, former employers are required to provide a reference to another employer considering appointing the individual.

References and statutory rights

The employer must ensure that any reference they provide, or any reason for refusing a reference, is not discriminatory. An employer may be liable for discriminating against a former employee even after the employee has left the company. When comments are made about a disabled employee's performance or attendance, care should be taken to avoid discrimination.

Information must be true, accurate, and fair

Employers must ensure that all reference providers understand what to include in a reference to avoid any claims of defamation, malicious falsehood or the tort of deceit. References must not include information that the reference provider knows or has reason to believe is untrue.

Reference policies

It would be wise for an employer to implement a reference policy. It should specify who can provide references on behalf of the company, what format to use, and what information to include.

Nowadays, many employers provide only limited information in their standard references, such as dates of employment and positions held. This limits exposure to claims from both ex-employee and the future employer. If this is policy, it should clearly state on references that this is the employer's policy so that the recipient won't draw any negative conclusions. 

Employers who provide fuller references with subjective comments must ensure that they pass the true, fair, and accurate test.

Personal references

As most employers only provide references confirming dates and positions held, employees are often asked to provide references for ex-colleagues. A company's policy should clearly state how to handle such requests. Ensure that the employee makes it clear that the reference is being provided in a personal capacity; the reference must not be on the employer's letterhead, and the reference must come from the individual's home or personal email account.

Data protection 

When disclosing personal information about employees or ex-employees, employers must ensure they do not breach their data protection obligations. A reference should be provided on the basis that the employee has consented to the employer processing their data. Employers can ask leavers if they consent to references being provided to prospective employers and keep a record of that consent. The employee will have the right to withdraw their consent at any time.

When giving references, the previous employer should ask the prospective employer for the ex-employee's signed consent.

Should a reference include sickness absence details?

Including sickness absence details in a reference can lead to disability discrimination. If an employer provides details of the number of days an employee has been absent during a particular period, an employee with a high absence rate may be disadvantaged as they may appear less attractive to employers. The wisest approach is to stick to a policy of providing only basic information on references, not including the number of absences.

Any information divulged about an employee's health details without their explicit consent would breach UK GDPR. 

Do references need to mention disciplinary issues?

When providing a reference, employers must consider whether to mention disciplinary proceedings or allegations, especially if the employment ended before the hearing or investigation took place.

When an employer provides only dates of employment and positions held, it is not misleading to omit negative information. Employers should consider their duties to both the recipient and the subject of the reference when deciding what to include when responding to potential new employers' questions.

Before including a potentially contentious point in a reference, employers should obtain legal advice before providing the reference.

Should a disclaimer of liability be included?

Disclaimers of liability are often included in references to protect against errors, omissions, and inaccuracies. If the reference is reasonable, it may prevent a claim from the recipient.

Please note that a disclaimer is effective in certain circumstances only, but there is no disadvantage to the employer in including one.

*XpertHR