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Giving References: Damned if you do, damned if you don't?

If you are asked to provide a reference for a former employee, be careful about what you say...and what you don't say. 

As an employer, you generally have no obligation to provide a reference for former employees. However, references are a fact of life and are frequently requested and given. 

If a reference is given it should be true, accurate and fair and it should not give a misleading impression. Walking this tightrope isn't always easy. You could find yourself liable not only to the former employee (if the reference is discriminatory, defamatory, or is maliciously or negligently untrue) but also to the prospective new employer (for knowingly or negligently providing false information). 

These conflicting risks can leave employers in a quandary. Should you include negative comments about an employee (which could be thought of as unfair), or omit them (which could present an inaccurate impression)? 

This point was recently explored by the Court of Appeal (in  Jackson v Liverpool CC), where it was held that it was fair for the reference to mention certain allegations about an employee which had come to light since he had left his job. The allegations themselves had neither been substantiated nor investigated, a fact that the employer was careful to point out in the reference. In other words, it was fair to refer to the existence of the allegations if it was made clear that they had not been investigated. The court concluded that the prospective employer had been notified of significant information in a way that did not prejudice the employee. 

This decision provides some comfort for employers, but only some. Employers should still be wary of making statements in a reference which might be contentious. 

Common strategies for minimising the risk include providing only a brief factual reference, stating only the dates of employment and the employee's role, or including a legal disclaimer. But neither strategy is foolproof: a brief factual reference could omit crucial information (and so paint a false picture for the recipient), and a disclaimer is only effective if it is reasonable. 

Some practical tips on giving references include: 

  • Adopt a company policy on the format and content of references and apply it consistently. 
  • Make sure the reference is fair, accurate and provides a balanced overview of the employee. 
  • If a brief factual reference is provided, make it clear that this is your company's policy and that it does not have any bearing on the employee's character or performance. 
  • If a disclaimer is used, make sure it is reasonable. 
  • If there is a chance that the reference might be challenged, take some legal advice before you give it.

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