References. To Give or Not To Give
Our guest blogger Claire Nisbet is a Senior Solicitor in the Employment and Pensions team at Maclay Murray & Spens LLP. Whilst advising employers and employees on a wide range of employment issues, Claire specialises in advising clients on contentious employment, discrimination and equal pay matters.
Claire is the Treasurer of the Scottish Discrimination Law Association, a Committee Member of Scottish Women in Business and a Board Member of Graphic Enterprise Scotland, the Trade Association for Print Employers in Scotland. Since April 2015 Claire has acted as Assistant Editor and Research Assistant on the 3rd Edition of Employment Tribunal Practice in Scotland (Simon and Taggart), the only distinctly Scottish reference work of its kind.
References – to give or not to give?
There is generally no obligation on an employer to give a reference, except where there is a contractual entitlement to one, the employer risks victimising or discriminating against the employee by not giving one or there are Financial Conduct Authority requirements which should be mer. It could, of course, be said that an employer has a moral obligation to provide a reference. Either way, the employer’s policy on references must be consistent or it could lead to allegations of discrimination.
Who provides a reference?
References can be given on behalf of a business or in a personal capacity. An employer is legally responsible for the contents of a corporate reference because it is provided on its behalf, and it is therefore advisable to have a policy detailing who can give a reference, in what format and what information it can include. To ensure that a personal reference is not taken as a corporate reference, it should not be provided on headed notepaper or include the referee's job title.
What information should a reference include?
A reference does not have to be positive, but it must be accurate and true. There is no requirement as to the content of the reference, but given the potential liabilities it is common (and usually advisable) for employers to simply give a short statement confirming the facts of employment, such as the relevant dates and the employee's job title. More detailed references could include information such as the individual's performance, absence record and disciplinary record however any comments about performance or absence should not be related to a disability and you should be mindful of data protection obligations and consent requirements. It is advisable to provide a reference in writing rather than verbally as there is less possibility of misinterpretation.
What happens if a reference is inaccurate or unfair?
If the subject of a reference believes that it is inaccurate or misleading and has harmed their prospects of future employment, it may be possible for them to sue the employer for negligent misstatement. The individual may also be able to take the employer (and potentially the recipient of the reference) to an employment tribunal if they think that the negative reference is a result of discrimination.
Employers often include disclaimers in a reference to exclude liability to the recipient for any inaccuracies, but disclaimers will only offer protection to the employer if they are reasonable.
A cautionary tale…
The case of McKie v Swindon College demonstrates the need to be cautious when making statements about ex-employees, even if not intended to be a reference. An employer was liable for making careless and misleading comments about an individual who ended employment with them six years previously in an e-mail to the new employer, which resulted in the individual being dismissed. It was held that the former employer realised its email might have an impact on the individual's employment and so the damage was entirely foreseeable.
For advice or more information around any of the issues discussed please email firstname.lastname@example.org