Employment Law: The Reference Checklist for Employers

As an employer, you may receive requests for references from former or current employees. However, providing references can be a complex issue, and employers need to be aware of their legal obligations and the potential risks involved. In this article, we will provide a reference checklist for employers, including what to include and what to avoid.

Do Employers Have to Provide References?

In general, there is no legal requirement for employers to provide references, and they are entitled to refuse. However, some sectors may require it, such as financial services and candidates applying for positions at academies or maintained schools in England. Additionally, some employment contracts may include an obligation to provide a reference, which employers must comply with.

What Should a Reference Include?

Employers have a duty of care to ensure that the information contained in a reference is true, accurate, and fair. A misleading or inaccurate reference could lead to a potential claim for negligent misstatement or misrepresentation. A reference typically includes the dates of employment and the role undertaken. However, it can also include additional information such as timekeeping, disciplinary record, performance, and absence records.

What Should a Reference Not Include?

Employers need to be mindful of their data protection obligations when providing references. Processing personal data is involved in providing a reference, and employers need to ensure compliance with the UK GDPR and the Data Protection Act 2018 (DPA 2018). Employers should not provide confidential references about an employee without their consent. Employers must also take particular care when processing any special category data, such as an employee's sickness absence record.

Employees have the right to make subject access requests under the DPA 2018. Confidential references can be withheld from employees where the data consists of a reference given or to be given in confidence for the purposes of actual or prospective education, training, or employment of the data subject. The exemption also applies to the recipient of the reference, that is, the future employer.

What Are the Risks When Providing a Reference?

Employers must ensure that a refusal to provide a reference is not discriminatory due to any of the protected characteristics under the Equality Act 2010. Employers should be aware that protection extends to individuals who are subject to discrimination that takes place after their employment has ended as well as during employment. If an employer provides an inaccurate reference or declines to provide one because of a protected characteristic, the employee could bring a claim for discrimination.

To minimize the risks and promote consistency, employers should have a clear written reference policy in place. The policy should provide guidance on whether to provide a reference and what information to include.

Reference Checklist for Employers

Here is a reference checklist for employers to ensure compliance with employment law:

Do:

• Consider whether you are under a legal duty to provide a reference and whether any exemptions to the general rule apply.
• Implement a clear written reference policy.
• Mark references as private and confidential.
• Consider whether a disclaimer of liability should be included.

Don't:

• Include any inaccurate or misleading statements.
• Exclude any information that would result in the reference being misleading.
• Provide a reference containing any special category data without considering data protection obligations.
• Include any comments about performance or absence that might contravene disability discrimination provisions of the Equality Act 2010.

Conclusion

Providing references can be a legal minefield for employers, and failure to comply with employment law can result in costly legal claims. Employers must ensure they have a clear written reference policy in place to minimize the risks and promote consistency. Employers must also be aware of their data protection obligations and comply with the UK GDPR and DPA 2018 when providing references. By following this reference checklist for employers, you can help ensure compliance with employment law and minimize the risks involved.