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23-April-2007
Giving references: Pitfalls for the unwary
Prospective employers commonly approach current or former employers of an individual for a reference to assist them in deciding whether or not to offer the individual a job. Whilst this may sound straight-forward, there are some legal traps and practical tips to be aware of.
The legal points
There is no general legal obligation on an employer or former employer to provide a reference. As such, you could legitimately refuse to provide a reference – provided that your refusal is consistent with your usual policy on the provision of references, is not contrary to any express or implied contractual obligation and is not tainted by discrimination or victimisation.
The second is that if you do decide to supply a reference, you will owe certain duties to the individual who is the subject of the reference and also to the prospective employer.
In particular:
Furthermore, a referee can be sued for negligence for an inaccurate reference; this includes a failure to ensure the accuracy of the facts upon which opinions expressed in the reference are based. The employer is under a duty of care to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall. This will also prevent the giving of an overly favorable reference.
An employer will be negligent in providing a reference that alludes to an employee’s misconduct unless the employer had carried out an investigation and has reasonable grounds for believing that the misconduct had taken place.
The employer must exercise particular care when providing a reference in respect of a current employee; provision of an inaccurate or unreasonable reference may constitute a breach of the implied duties of good faith and trust and confidence entitling the employee to resign and claim constructive unfair dismissal.
The practical tips
References should always be marked "Private and Confidential" and "for the addressee only".
If a brief and strictly factual reference is supplied (giving perhaps only dates of employment and job title) it is wise to accompany it with a statement that this should not be construed negatively but is the employer’s standard practice. If greater detail is supplied, the reference should include a disclaimer such as: "The above information is given in confidence and good faith. No responsibility is accepted by [name of employer] or any of its officers or employees for any errors, omissions or inaccuracies in the information or for any loss or damage that may result from reliance being placed upon it".
References may be provided by an individual in a personal capacity or on behalf of the employer as a corporate reference. The employer is legally responsible for the contents of a corporate reference because it is provided on its behalf. Whilst a personal reference is not given on behalf of the employer, a personal reference may be read as being a corporate reference, particularly if it is given on the employer’s headed notepaper or with the referee’s job title. As such, employers should have a policy in place dictating who may give a reference, in what format (verbal and/or written) and what it can include and, if appropriate, prohibiting the giving of personal references without company consent.
Lastly, equal care should be taken when giving a verbal reference as a written reference. If you are the recipient of a verbal reference, take contemporaneous file notes.
ENDS
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