Many of you do, or
will, provide references for employees.
However, are you clear about your obligations when doing so?
In the recent case
of Pnaiser v NHS England and Coventry
City Council an employer provided a positive written reference followed by
a negative verbal reference (stemming from the individual’s disability related
absences). The job offer was withdrawn
and the employer was found liable for disability discrimination.
So how can you
avoid something similar? Some reminders
when preparing a reference:
- There
is usually no legal obligation to provide a reference at all.
- Employers
owe a duty to both the employee and the recipient of a reference to take
reasonable care to ensure a reference is true, accurate and fair. An inaccurate / misleading reference could
trigger a negligent misstatement or libel claim.
- Consider
introducing, and comply with, a workplace policy to ensure that references are
consistent.
- A
brief reference, even just confirming job title and dates of employment, is
acceptable but make clear this is company policy (so no negative inference is
drawn).
- It
is often advisable to provide references in writing rather than over the phone
to reduce the scope for misinterpretation of what has been said.
- Don’t
comment on a former employee’s alleged misconduct if there has been no proper
investigation.
- Remember
your obligations under the Equality Act.
In Pnaiser, making a negative
inference on the basis of something linked to a person’s disability was held to
be discriminatory.
- Information
should be limited to the referee’s specific knowledge. Anything included should be objectively
justifiable (particularly if asked to speculate).
- When
agreeing a specific form of reference, for example in a settlement agreement,
consider reserving the right to amend the reference if anything comes to light
after the agreement is signed that would render the reference factually
inaccurate.
- Disclaimers
of liability can be used but are valid only so far as ‘reasonable’.
These days, given
the potential liabilities involved, it is common practice for employers to give
only a short statement confirming that the individual was employed, the dates
of employment and their job title. If you choose to go into more detail, take
care not to fall foul of your legal obligations.
Camilla Beamish
