There is a lot of uncertainty for employers concerning employment references.
Acas has recently published helpful new guidance concerning employment references dealing with the following matters:
- Does a reference have to be provided?
- What can the reference include?
- Can an employer give a bad reference?
- Job offers and references
As an employer, you don’t usually have to provide an employment reference, but if you do, it must be fair and accurate. If a worker thinks you have given an unfair or misleading reference, they may be able to challenge it. If you work in a regulated industry such as the financial services industry, you must provide a reference and likewise where there is a written agreement to do so.
If you choose to provide a reference, it must be fair and accurate and can include details about the worker’s performance and whether they were dismissed. If you wish to give a brief reference, this can be limited to simply their job title and dates of employment. This is known as a “factual reference”. Many employers have a policy in place which means they will only provide these kinds of references to limit liability for claims.
Opinions can be given in references but they must be based on facts that can be backed up by evidence. The reference cannot include any irrelevant personal information. Avoid giving subjective opinions or comments that are not supported by facts.
In the event that a job applicant is unhappy with a reference provided about them, they can request, usually in writing, a copy of any reference sent to a new employer, under the General Data Protection Regulations (GDPR). The request would be made to the author of the reference.
If a worker thinks they’ve been given an unfair or misleading reference, they may be able to pursue a claim for damages. The worker will need to be able to show that the reference is misleading or inaccurate and that they suffered loss as a result. For example, a job offer was withdrawn.
It is advisable to have a written policy regarding providing references which is clearly communicated to all staff. It should explain who within your organisation is authorised to provide references and what information should be included, as explained above. This will ensure there is a consistent approach to requests for references, avoiding the risk of claims.
You may wish to include a disclaimer in the reference in an attempt to avoid any liability arising from inaccuracies, errors or omissions.
If you require advice regarding any employment matter, please contact Farleys’ employment team on 0845 287 0939 or complete our online contact form and one of the team will get in touch with you.