Do employers have to provide references?
Generally, there is no legal obligation to provide a reference and employers are entitled to refuse. However, there are some exceptions. In certain sectors, providing a reference is obligatory, for example, some organisations in the financial services sector and for candidates applying for a position at an academy or maintained school in England.
Some employers' contracts of employment may also include an express obligation to provide a reference. Where this is the case, they should comply with their contractual obligations. However, employers are not obliged to include such a provision in their contracts.
What should a reference include?
The employer owes the subject a duty to take reasonable care to ensure that the information contained in the reference is true, accurate and fair and does not give a misleading impression. Employers also have a duty of care towards any prospective employers and an inaccurate or misleading reference could lead to a potential claim for negligent mis-statement or misrepresentation.
Usually, a reference will include the dates of employment and the role undertaken but could also include additional information on time keeping, the reason for leaving, disciplinary record, performance and absence records.
What should not be included in a reference?
The reference should ideally be limited to the referee's specific knowledge of the subject rather than include speculation as to the person's suitability for a new role.
Employers need to take care to ensure they comply with the UK GDPR and Data Protection Act 2018 (DPA 2018) as providing a reference will generally involve processing personal data. The Employment Practices Code recommends that employers do not provide confidential references about a worker unless they are sure that the worker consents. Particular care must be taken when an employer is processing any special category data – for example, in relation to an employee's sickness absence record.
Employees have the right to make subject access requests under the DPA 2018. Importantly, there is an exemption regarding confidential references where personal data can be withheld where it consists of a reference given or to be given in confidence for the purposes of actual or prospective education, training or employment of the data subject. Significantly, the exemption also applies to the recipient of the reference, that is, the future employer.
Employers must ensure that a refusal to provide a reference is not discriminatory due to any of the protected characteristics under the Equality Act 2010. Importantly, protection extends to individuals who are subject to discrimination which takes place after their employment has ended as well as during employment. If an employer provides an inaccurate reference or declines to provide one because of a protected characteristics the employee could bring a claim for discrimination.
To minimise risk and promote consistency, employers should ideally have in place a reference policy to ensure that proper consideration is given about whether to provide a reference and what information to include.
Checklist of dos and don’ts
Consider whether you are under a duty to provide a reference and whether any exemptions to the general rule apply.
Implement a clear written reference policy.
Mark references as private and confidential.
Consider whether a disclaimer of liability should be included.
Include any inaccurate or misleading statements.
Exclude any information which would result in the reference being misleading.
Provide a reference containing any special category data without considering data protection obligations.
Include any comments about performance or absence that might contravene disability discrimination provisions of the Equality Act 2010.
Ian Jones is a senior associate in the employment team at Blake Morgan