Q: Do I have to provide a reference? I have an ex-employee who worked for the business for more than 10 years. While his work performance was average, his attendance record was poor. He has now found new employment, and I have received a reference request from his new employer. Am I legally bound to provide one, and should I inform them of my attendance concerns?
A: There is no general law requiring employers to produce a reference for an ex-employee, but there may be some industries in which references must be provided. The former employee’s contract of employment should also be checked in case a contractual right for a reference to be provided exists.
References can be a tricky area that may, occasionally, provide an ex-employee with the opportunity to make a claim against the employer. Therefore, most employers stick to a brief factual reference containing the start and end dates of the individual’s employment, and his job title, sometimes accompanied by a description of his duties.
The information provided must be factual and not lead the ex-employee to be able to claim that it contains misrepresentations about them. You have a duty of care to the ex-employee and the new employer.
In circumstances in which you are not obliged to provide a reference, you may decide not to. However, references help to shed light on the character of your former worker, over and above his CV or his interview, and can play a large part in his future recruitment. Not providing one could detrimentally affect the ex-employee.
In addition, failure to provide a reference can amount to an act of victimisation under the Equality Act 2010, if the reason for the failure is that the ex-worker sought to bring proceedings under discrimination legislation, or was a witness for a colleague who brought proceedings. Therefore, providing a short factual reference may be the best way forward.
Revealing details of the individual’s attendance record could also cause problems. Such information could constitute sensitive data under the Data Protection Act 1998, which would trigger the eight data protection principles and give the individual certain rights of access. Court cases are not unheard of that focus on the contents of a reference, so employers should tread carefully.
Having a reference policy in your organisation will help set out the parameters of all reference requests that you receive and will help to ensure consistency. This will be particularly useful if different people within your organisation create references for former staff.
Regular training on equal opportunities will also help your staff understand how the Equality Act can affect references, and other parts of employment, and to raise awareness of how they should act.
Peter Done is managing director of Peninsula