The question
Does a referee need to discuss a potentially damaging reference with the employee concerned before it is sent to a new employer? What is the legal position on references generally in terms of what can and can’t be said?
The legal verdict
Martin Brewer, a partner at Mills & Reeve
The law is pretty clear that the giver of a reference owes both a duty of care to the employee concerned and to the recipient of the reference. The duty is to produce a reference that is honest, accurate and fair.
So in relation to the recipient, provided the reference tells the whole picture and is not misleading, either by what is in it or by what is left out, the duty is complied with and the situation should, therefore, be fine.
There is no legal obligation to discuss the terms of a reference with an employee. However, it makes good sense to discuss a potentially poor reference with them to at least give them the option of deciding whether to ask someone else to give a reference on their behalf. But when entering into such a discussion, do not be tempted to produce something that is not entirely accurate.
Martin Brewer is a partner at Mills & Reeve.
Esther Smith, a partner at Thomas Eggar
Broadly speaking (except in some limited industries), there is no legal obligation on employers to provide an employee with a reference. However if one is provided, the employer owes a duty to both the employee concerned and the recipient of that reference to take reasonable care in ensuring that the information provided is true, accurate, fair and not misleading.
This means that employers should not:
- Provide a discriminatory reference (this refers to discrimination in one or more of the nine forms protected by the Equality Act 2010, namely age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation)
- Provide a reference that victimises an employee (for example, if they have made a previous claim for discrimination)
- Make an untrue statement that disparages the reputation of the employee
- Maliciously make an untrue statement that causes economic loss
- Provide inaccurate information (including referring to an employee’s misconduct where there has been no investigation or where the referee has no reasonable grounds for believing that the misconduct occurred)
- Include false information with the intention that the new employer relies on it
- List spent convictions unless they are covered by the Exceptional Order to the Rehabilitation of Offenders Act 1974
- Incorporate any sensitive personal data without the consent of the employee concerned (such as reasons for sickness)
Employers have no obligation to discuss a reference with an employee before sending it (damaging or not) and an employee’s right to access personal data, which is contained in the Data Protection Act 1998, does not apply to references provided by employers for the purpose of future employment. An employee may, however, be able to obtain a copy of the reference from their new employer if it is deemed reasonable in the circumstances from them to supply this.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
