Guidance on the provision of references
Whilst there is no legal obligation on an employer to provide a reference, if faced with a request to provide a reference for an employee you should not normally refuse. A reference is a very powerful document and the preparation of a reference should reflect this fact. There have been a number of high profile cases over the years involving references and you should take heed of the following advice to minimise potential exposure.
What should be included in the reference?
If the request for a reference is a general request then the length or brevity of the reference is a matter for the manager. Often, requests for references are in a pre-printed format, requiring specific information to be covered. You are not obliged to follow the requested format particularly if it is very detailed and goes above and beyond what you would ordinarily include in a reference.
If the request is a general one, the following matters should be included:
- Length of service
- Positions held
- Competence in the job
- Time keeping
- Reason for leaving
- Any other general remarks about the employee
What obligations are placed on an employer in providing a reference?
A manager owes a duty of care to the employee and to the recipient of the reference.
Obligations to the Employee
In drawing up the reference you must be sure that:
- you take reasonable care in the preparation of the reference
- the information contained in the reference is true and accurate
- the reference is fair and reasonable
- the reference is written without malice
- all references are marked "private and confidential"
- the employee has been made aware of any short comings or complaints referred to in the reference
Failing this you may be found to have been negligent if as a result of the reference the employee suffers damage.
Obligations to the recipient
It is established case law that the recipient of a reference may sue the employer if they receive a negligent reference from an employer as a result of which they suffer loss. It is no longer possible to rely on a disclaimer in a reference to avoid liability, in the event of a negligent misstatement being made.
It is imperative that care is taken in the preparation of a reference and adopting the above guidance will minimise exposure to litigation.
If you are unsure about providing a reference for a member of your staff, please seek advice from your HR Officer.