Employers: Are Your References Up To Scratch?

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  The job offer was withdrawn and the employer was found liable for disability discrimination.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