Does an employer have to give a reference about an employee who was suspended from work during an investigation and has since resigned? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
Our employee was suspended during investigation, and was about to be disciplined when she resigned. The investigation has not quite concluded because of her absence but she has asked for a reference for a new job. Do we have to give one? We have been told we must supply a factual one, but surely that would omit pertinent but unsubstantiated information about lack of trust and dishonesty?
Legal advice:
Esther Smith, partner, Thomas Eggar
Unless you are operating within a specific industry where there is an obligation to provide a reference, then there is no responsibility to do so. It is entirely up to an employer as to whether or not you provide one.
However anything you do provide, whether in writing or verbal, must be fair and factual. The person who the reference is about can sue you on the content of the reference, as can the third party who relies on the reference you have provided.
Therefore in putting one together you owe both these parties a duty of care, and must ensure that the reference provided is factually correct and not misleading. Leaving out information is not in itself misleading, and the provision of a reference confirming dates of employment and job title would not necessarily be a problem as the information provided does not suggest that there were no issues relating to the termination of her employment.
So in this case, you could provide a reference that states that this employee resigned during an investigation into the allegations in question. This is factually correct and not misleading.
However, I was always taught that if you couldn’t say anything nice you shouldn’t say anything at all!
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
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Martin Brewer, partner and employment law specialist, Mills & Reeve
You only have to give a reference if either you have a contractual obligation in your contract of employment or if giving a reference is customary in your sector (such as in financial services).
If you do decide to give a reference you must bear in mind that you owe a duty of care to the recipient. Any reference must be true, accurate an honest. In this case (and in most cases) what many describe as ‘factual’ can be misleading to the reader who will assume that if there were problems the referee would mention them.
So in your case, you might say that the employee was subject to disciplinary proceedings which had not been concluded at the date she resigned. That would be factual, accurate and honest. You might add, if true, that throughout the investigation the employee denied the allegations and so on. Obviously you cannot write a short novel on this but you do need to give enough information so that the reader isn’t misled.
Incidentally, on a final note, many employers complete the disciplinary process notwithstanding that the employee has resigned or even left. If the investigation is thorough the employer will have all the information it needs to at least come to a view on the employee’s guilt (or otherwise). The reason for this is just so that if a reference request is made a fuller picture can be presented.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.
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