When an employee gives you notice that they will be leaving
at the end of the term specified in their contract of employment, you know that
they will probably be requesting that you give them a written reference to pass
to their new employer. You may also receive reference requests for past
employees from their new employer.
You may think this is a perfectly natural request that you
can easily fulfil, but there are some pitfalls to be avoided, as well as legal
implications. Occasionally you may get such a request from a landlord or a bank
considering issuing a loan or setting up a new account. Apart from a few
exceptions in specific industries, you are not obliged in law to give
references and are free to have a policy of not doing so. In this way you
cannot be accused of unfair treatment of an individual if you refuse to give
them a reference.
Wanting to be Helpful
However, you may prefer to be helpful to employees wishing
to move forward with their careers by writing a reference for them. If you do
so, make sure it is fair and accurate. Otherwise, if the impression you give is
misleading in any way, you could be in trouble down the line. You can include a
disclaimer of liability for any errors, but this would not always help if a
former or current employee or someone else decides to take legal action.
Getting Agreement from the
Employee
You must never issue a reference to a third party unless the
employee has agreed. This is because it will inevitably contain some personal
information and details the individual may wish to withhold. You could be in
breach of the Data Protection Act if you release this information without the
consent of the person concerned.
If the reference request enquires about the mental and/or
physical health of the individual, you also need to get their explicit consent
to divulge it. It’s best to get this in writing as evidence in case it should
be needed later. Even if you are asked to state a number of absence days
without giving reasons for it, you risk a claim for disability discrimination.
Sometimes an employee with whom you have been in dispute will
have made a settlement agreement with you, and it may have set out the wording
for a reference to be given.
Finally, your local bookkeepers would advise you that it is
usually wise to send a reference to a specific addressee, rather than ‘to whom
it may concern’. If it were to fall into unscrupulous hands there could be
further trouble for you.
