HR Expert: Reference Request
A client has had a difficult employee for a while but they left recently, quite acrimoniously. Out of the blue, they’ve now received a reference request from a different company about this employee. They’ve been speaking to me about this and I’d like to know whether they have to respond and what they can include in the reference?

Receiving a reference request may be unexpected by some employers, however, this is a standard part of recruitment by the prospective employer. Where the employee left on less than amicable terms, their previous employer should take in to account the following considerations when deciding whether to respond and what to include.

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There is, generally, no legal obligation on an employer to provide a reference when requested to do so. Some companies have a policy in place that explicitly states they will not provide a reference for a current or ex-employee. This may be the safest thing for companies to do because there are risks with providing a reference, however, this is unlikely to create good employee relations or leave a positive impression of the company on those leaving.

Where the company provides a reference, they owe a duty of care to the individual and the recipient of the reference. As such, the ex-employer should take all reasonable care to ensure the information contained in the reference is true, accurate and fair. There is no requirement on employers to provide a detailed reference; instead, they may choose to only provide brief information about the start and end date of employment and the job role the individual carried out. When only providing a brief reference, this should also contain an additional statement explaining this format is company policy, to avoid any negative implications being drawn.

Current and ex-employees are protected against discrimination and this will cover any comments or information contained in a reference. Therefore, before including any details about the individual’s performance, absence record or periods of sickness, there should be an assessment of whether these comments are discriminatory on the grounds of disability or any other protected characteristic.

Providing a false or misleading reference carries a high level of risk for the employer. The reference provider will be liable for the individual’s losses; where the prospective employer withdraws a job offer because of the information contained in the reference, these losses may be significant. In addition, any discriminatory comments within the reference may leave the reference provider facing an unlimited compensation claim at tribunal.


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