Giving an employee reference - be careful!
Writing a reference for an ex-employee may at the outset seem straight forward, however employers need to be cautious.
What Can Go Wrong
If you provide a reference you have a duty to take reasonable care to ensure it is true, accurate, and fair and not misleading.
• If you provide a bad reference that you can’t substantiate, you run the risk of your former employee suing you for damages if they did not get the job.
• If you provide a glowing reference for an employee who has not been satisfactory and that employee goes on to perform badly in their new job, the new employer could claim damages against you.
Your Options
• Do not give references as a matter of policy. Employers are generally under no obligation to provide references. If you decide on this option as policy it is advisable to reply to reference requests with a statement that it is not your policy to give them, particularly to avoid misunderstandings perhaps with employers believing that you had problems with the employee.
• Give the bare facts: many employers provide the minimum details e.g. the employee’s position and dates of employment. Again if this is your policy it is advisable to state that it is your policy not to provide further details.
• Providing a full reference. You may decide to give a full reference giving details for example about the employees attitude, timekeeping, drive etc. If you decide on this option remember you have a duty to ensure the content is true, accurate, and fair.
• Do not include sensitive personal data in a reference, e.g. information about the individual’s health, race or trade union membership, without first obtaining the ex-employee’s consent.
• Include a disclaimer: many companies aim to limit liability by adding a disclaimer stating that they cannot accept any liability for errors or omissions in the reference. However, in reality, how much protection a disclaimer will provide may be limited.
Whatever option you decide to go with the key is to be consistent. Inconsistency could lead to a claim of discrimination from a disgruntled employee. It is best to establish a policy clearly stating whether you give references, if you do, who should give them and what they should contain.
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