An employee’s reference is a significant document, often making the difference between offering or refusing them a job. This article will look at the specific issues you should have in mind when writing references for your employees. The first point to note is that there is no legal obligation upon an employer to give a reference about its employee. By giving a reference the business becomes legally liable for that reference. It will be liable not only to the employee concerned, but also the prospective employer. If you have described your employee as extremely competent and hard-working, but in fact they have been dismissed for incompetence, their new employer could sue you for your negligent misstatement, as they will argue that one of the reasons why they took on the employee was because of your glowing reference. General factors A prospective employer would want to know about the particular role the employee carried out, their reason for leaving employment, their history with the company (which would include positions held as well as their length of employment). Their honesty and competence should also be considered, as well as their general time keeping and any other comments specific to that employee. What to include The obligation upon you is to provide a true accurate and fair reference, which does not give a misleading impression. It is perfectly possible to give a true and accurate reference, but still to give a misleading impression in that reference. Assume that you have a member of staff who is extremely competent in the way he carries out his duties. However, the reason why the company parted ways with this person is because he made sexual advances to another member of staff. If you simply state in the reference that he was extremely competent at his job, but make no mention of the sexual harassment, then the reference that you supply is, strictly speaking, correct but it is misleading because it gives the impression that this person is a good employee when clearly he is not. That does not mean to say that any reference you supply is to read like a biography, simply make sure that you deal with the most important issues. It is often dangerous to give a personal opinion about an employee – unless you can back it up by evidence. For example, you may have an employee who has had very many ‘one off’ instances of illness. It would not be appropriate to second guess, or infer, that those sickness absences were not genuine, unless you have evidence to show that they were not. Similarly, if you going to praise an employee for the work that they did, then it is clearly important that you can show that that employee did in fact carry out their duties well. It can sometimes be very tempting to tell little white lies on a CV. The writer recently represented an employer who dismissed an employee because of bad time keeping. About six or seven weeks after his dismissal, the employee went back to his former employer and asked for a reference because he was finding so difficult to get another job. Out of the kindness of his heart, this ex employee’s Line Manager wrote a reference confirming that he had been dismissed by reason of redundancy. The employee then started Employment Tribunal proceedings alleging unfair dismissal on the basis that there were two different reasons for dismissal! Is my reference confidential? The Data Protection Act does apply to references. You do not have to give your employee a copy of a reference that you have written about them. The situation is different, however, if you receive a reference about an individual from a previous employer. In those circumstances, you will have to carry out a balancing act in deciding whether to supply the reference or not. On the one hand it is fair that an employee is able to comment about a reference written about them. On the other hand, it is also fair to assume that the employer who gives the reference and marks it ‘private and confidential’ will have that confidentiality respected. Accordingly, it is extremely important that on all references that you send, you mark them strictly private and confidential. If you are going to supply references about your current employee to another employer you may wish to ensure that before supplying that reference, the employer concerned gives you an assurance that the reference will be kept confidential. Summary You do not have to give a reference If you do, make sure that the reference is as objective as possible and always mark it ‘Strictly Private and Confidential’ Try to avoid personal comments about your employee – unless you can back them up with facts Ensure that your reference gives a balanced over-view of their employment, not just a snapshot. Resist the temptation to just give a verbal reference – always supply a written reference so there is no dispute over what was actually said Remember that you may be sued on the basis of an incorrect reference – it makes sense to ensure that you personally approve any reference before it is sent out About the author This article was prepared by Aaron & Partners LLP. For details of Aaron & Partners’ full range of legal services click here.
How to write references. An employee’s reference is a significant document, often making the difference between offering or refusing them a job. This article will look at the specific issues you should have in mind when writing references for your employees.