Pitfalls of giving staff references

Employers have a duty to be honest when giving references, but what happens if they get it wrong? A recent employment tribunal offers a timely reminder of the dangers

A recent employment tribunal decision – the case of Mefful v Merton and Lambeth Citizens Advice – found a company’s former employee was discriminated against when it provided a reference containing comments regarding his sickness absence.

How was a former employee discriminated against through a reference?
The tribunal ruled that the employer had failed to provide any favourable information about Mr Mefful’s performance or personality.

The company had overestimated his sickness absences to a “substantial degree” and, as such, had created an “entirely false and misleading impression of his successful eight-year career”.

When giving a reference, employers have a duty both to the new employer and the applicant to give a reference that is true, accurate and fair. As well as discrimination claims, a former employee may also bring claims for damages when inaccurate information is given.

What should a reference cover?
It has become common practice for many employers to restrict references to only the most basic of information. This is attractive as the information should be on a central record and should be straightforward to provide, without any mistakes.

However, employers have a duty to the prospective employer and sometimes what you leave out is as important as what you include: If an employee has been dismissed for gross misconduct, for example, it could mislead a prospective new employer if you don’t include that information in your reference, which would not be a fair reflection of their performance and conduct.

Employers don’t have to respond to all questions asked. However, if answers are provided for some, but not others, then you should keep a record of why you chose to do so.

It is important to give credit where it is due. If the employee has performed well in some aspects, you should acknowledge this in the reference.

Can an employer refuse to give a reference?
There is generally no legal obligation to give a reference. If you refuse to give a reference you should be clear why a reference is not being provided, which may be standard practice. But if it isn’t, former employers should think carefully about why they are refusing to provide one. If the reason is connected with a ‘protected characteristic’ under the Equality Act, previous employees will have discrimination claims and, potentially, a standalone victimisation claim, which can be very costly.

An employer may also be liable for personal references written directly by managers, unless it is very clear that the reference is being provided personally. If the reference is on company letterhead or from a work email address the distinction may not be clear.

How can you protect the business when giving references?
It is best practice to have a reference policy, which all employees know about. Reference requests should be managed by the same people within the organisation so that there is consistency in approach. However, any standard policy should not be followed slavishly.

There may be circumstances where an exception will be made: For example where there is a settlement agreement or an honesty issue/gross misconduct dismissal. If you are providing a more detailed reference it must be balanced. It is important to give credit where it is due. If the employee has performed well in some aspects, you should acknowledge this in the reference.

Accuracy is crucial when disclosing sensitive and potentially controversial information about an employee, For example, you cannot refer to an employee’s “poor performance and dishonesty” unless you have evidence to substantiate the allegation. All references should include a disclaimer, to protect you against claims by the prospective employer.

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