Legal Q&A: References

Greystone Legal partner Paul Humble answers some key employment law questions on references.

Do employers have a legal duty to provide references for employees?

No. The general rule is that it is a moral obligation only.

Are there any exceptions to that rule?

Yes, there are some fields in which there is a legal duty to provide a reference, including in financial services and the education sector. Occasionally, there might be a contractual obligation to provide a reference, and a failure to provide a reference can amount to discrimination or victimisation in certain circumstances.

Is there any liability if I provide an adverse reference?

Yes. The case law suggests that, where an reference is provided then an employer must take reasonable care in giving the reference and in verifying the information upon which it is based. A failure to do so might amount to a negligent misstatement which is actionable. The reference must not give an unfair or misleading impression when looked at as a whole.

Is there any duty to the recipient of the reference?

Yes, there is a duty to act reasonably to the recipient of the reference. In other words not to provide misleading information to the prospective employer.

If I want to provide a reference, how do I best protect my position?

Firstly, have a clearly stated disclaimer in place upon the reference which will protect you against any action brought by the recipient of the reference (although not necessarily against any claim brought by the subject of the reference). Secondly, if providing a detailed reference ensure that you can evidence any information provided that is less than favourable. The other approach is simply to provide a bare factual statement of dates of employment and positions held, and to be consistent in following that approach.

From the August - September edition of Aycliffe Business magazine.

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