Member Article

Can employers refuse to give a reference?

The short answer is… yes. However, there are many dangers in refusing to give a reference, so please carefully read on:-

Employers can refuse to provide a reference unless an express or implied contractual term has arisen where the company will provide a reference. An implied contractual term will arise if it is normal practice in the type of work covered in the employees contract for a reference to be given, and it would be unreasonable to expect a new employer to take on the employee without a reference. Companies have at least a moral obligation to provide references. It may also be discriminatory on the grounds of; sex, age, sexual orientation, religion or disability to refuse to give a reference. A negligence claim could theoretically be made by a new employer if the previous employer failed to give a reference thereby concealing something serious which ultimately causes the new employer loss.

The truth of a reference

An employer is under a duty to provide a reference which is true, accurate and fair. The reference must not give an unfair or misleading impression, overall, even if its discrete contents are factually correct. An employer will not be liable for references that are not comprehensive unless the omission of the information has the effect of giving a misleading impression of the employee. If the company decides that it will give a reference, please ensure that the individuals manager prepares it and that they have had some training in preparing references. References should be addressed to a named person rather than “To Whom it May Concern”

The employers exposure

The employer has a duty not to make defamatory comments or those which amount to malicious falsehood. There is no liability for libel if the employer believes the information in the reference is is correct and is provided without malice. Disclosure of spent criminal convictions should be avoided. A disclaimer should be included but may be void unless it satisfies the test of reasonableness {Section 2 Unfair Contract Terms Act}. It is generally thought that liability cannot be excluded for mis-statement of facts which are normally in the company’s knowledge; performance, disciplinary record etc. However, a disclaimer in relation to an opinion of the employees suitability for a particular job may be acceptable. A clause excluding liability for negligence must be carefully worded and brought to the attention of the employee before the reference is given.

Bare minimum references

It is increasingly popular for companies to have a policy of providing a ‘Bare Minimum’ reference. If this policy is adopted it should ideally:-

• be communicated to all staff at the outset of the relationship
• be applied uniformally to all staff
• not to be used as a means of concealing something serious

References given by an ex-employer

A worker has the basic right, on request, to be supplied with information constituting any personal data held by the ex-employer. Any personal data must also be accurate and where necessary kept up-to-date. However the following points must be noted:-

• There is an exemption within the Data Protection Act {DPA} which means that an employer does not have to supply references given in confidence which it has written relating to; education, training or employment
• Despite the exemption the company may wish to choose to supply to provide a copy of a reference which is factual in nature
• Therefore, it is not obligatory for the ex-employer to supply a copy of the reference to the employee

This can be a complex area and whilst the above article has been carefully written the writer emphasises that it is not intended to be a substitute for professional advice. If you do require any assistance or further advice on this or any other Employment Law or Personnel matter, please contact me and I will respond promptly.

This was posted in Bdaily's Members' News section by Andrew Dane .