References and Employment Law

Employers often receive reference requests for former employees and, similarly, make requests of other former employers. References are now an essential part of recruitment. So, what are your obligations and how far should a reference go?

Recently, a former administrative assistant of Clarity Family Law Solicitors, Sameena Usmani, was in the spotlight after going to extreme lengths to validate her CV. She was dismissed after the firm found she had submitted a CV containing false information about her employment history. She went as far as obtaining a domain name similar to another firms, to provide the firm with a fake email address for it to seek a reference for her. She then went on to respond, purporting to be someone else, with false information to support her false employment history.

Whilst this resulted in the Solicitors Regulation Authority barring her from working in the profession again without its permission, workers in unregulated industries are unlikely to face such sanctions.

Does an employer have to provide a reference?

The short answer, in most instances, will be no. There is no general legal duty on an employer to provide a reference for an existing or former employee. Many employers refuse to provide references at all, and some will only provide short factual references.

The only exceptions will be for employers who agreed to provide one, under a written agreement (such as an employment contract or settlement agreement), or employers in certain regulated financial industries.

Who should provide a reference?

References provided in a personal capacity should be clearly separated from those on behalf of an employer, who will be legally responsible for the content of a corporate reference, even when its employee provides it without employer authority.

Personal references should not be given on the employer’s letterhead or using its e-mail account and should not include the job title of the referee.

For employers, having a policy in place detailing who is authorised to provide a reference on its behalf and what information it can contain is often useful.

What should a reference contain?

If an employer decides to provide references, it must be consistent in its approach. References that are provided must be fair and accurate, and can contain:

  • Factual details – confirmation of employment, dates of employment; position and, sometimes, salary information; and,
  • Additional details – this can include performance and termination of employment information.

Employers should bear in mind that workers can, on starting work with their new employer, ask to see a reference provided about them. Any reference that is considered unfair or inaccurate may be challenged. Similarly, employers must not mislead a prospective employer.

Practically, employers benefit from having clear policies in place; making job offers conditional on obtaining satisfactory references; and, ensuring references provided are consistent accurate and factual. If employers choose to provide more information, they must be cognisant of the risk. Sickness, attendance and performance issues may expose employers to a wide range of claims, including disability discrimination and breaches of data protection law.

We act for employers and employees, so if you have any questions about references or any aspect of employment law, please get in touch with us today on +44(0)203 146 3549 / e-mail: [email protected]  

Disclaimer

All our articles are intended for informational purposes only and do not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information provided.

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