6 things you need to know before writing a reference
What you need to know
1. What is an employee reference?
Employee references can contain information regarding an employee’s skills, temperament and ability to undertake the role offered. They can be provided in either a personal capacity, by a colleague or friend, or by an employer on behalf of the company that employed them. The reference can be in writing or given orally, the legal obligations being the same regardless of the delivery method.
Beware that employers may become legally responsible for personal references provided by remaining colleagues. If, for example, a line manager provides a reference, including their job title, on the company’s headed notepaper, this is likely interpreted as a corporate reference as opposed to a personal reference, regardless of the initial intention when writing.
It is advisable to have a clear companywide policy in place as to who can provide a reference and in what format it should be.
2. Does an employer have to provide a reference if asked?
There is no legal obligation to provide a reference. An employer can choose whether they want to provide a reference and how much information is contained within it.
However, if you refuse to provide a reference, be careful that the refusal is not construed as discriminatory, i.e. on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. The protection against discrimination extends to after the employment relationship has ended.
Beware that if an employee has previously bought a discrimination claim or provided information or evidence in connection with a claim for discrimination against an employer, and that employer then refuses to give a reference, this could amount to a separate claim for victimisation.
There can be occasions where an employer has a contractual obligation to provide a reference; for example, a settlement agreement has been provided for an agreed reference or in an associate agreement. Practice owners should take care to ensure that the information provided in these circumstances does not create an unfair or untrue impression of the employee, either positively or negatively.
3. What should be included in a reference?
It is not uncommon to see a “factual reference” being provided by companies as a matter of policy, that is, a reference merely setting out the dates of employment and job title only to avoid any liability. In these circumstances, employees may seek alternative “personal” references from direct line managers or colleagues if more detail is required. However, employers must be consistent in implementing this policy to avoid allegations of discrimination or breach of the implied term of “mutual trust and confidence” between an employee and their employer.
If providing a more detailed reference, include the following:
- Details about the job applicant, including job title, employment dates and a job description.
- Answer any specific questions the requester poses, for example, regarding the employee’s attendance or disciplinary records.
- Information regarding the employee’s qualifications and skills
- An assessment of their character, strengths and weaknesses relating to their suitability for the role they have applied for.
- Contents of a reference should be consistent with any reason for dismissal.
We advise avoiding any speculation regarding the individual’s suitability for the role, particularly where the role is not the same as the one they were originally employed to do.-
4. Can a reference breach GDPR?
The GDPR and Data Protection Act 2018 put in place much stricter rules regarding the use of employee data. Businesses can protect themselves from inadvertent data breaches by having a clear policy in place as to who can give and in what circumstances a reference can be given. Furthermore, never provide a confidential reference about a worker unless you are confident they have consented to the information being disclosed. No copies of medical records or other sensitive data should be provided without the explicit, written consent of the employee.
5. Can I give a bad reference?
In short, yes, but with the caveat that all references must be accurate and fair. Subjective opinions should be avoided, don’t include anything that is not supported by facts. If you are tempted to provide a negative reference, it is probably sensible to decline to provide one to avoid any potential claims.
If a reference includes information that is inaccurate, then the referee could be liable for those negligent misstatements if the new employer went on to employ the person in reliance on them.
One issue might arise if an employee has resigned in response to misconduct allegations. You will need to decide whether to state this fact in a reference. If you do, make sure you do not mislead by making it clear that no investigation has been carried out and no finding made. If the allegations concern the safety of patients, then you may have an obligation to inform the new practice of this and potentially the GDC.
It is always advisable to include a statement in any reference limiting any liability in the event of a negligent misstatement;
“This reference is given to the addressee in confidence and only for the purposes for which it was requested. It is given in good faith and on the basis of the information available to the employer at the time it is given, but neither the writer nor [NAME OF EMPLOYER] accepts any responsibility or liability for any loss or damage caused to the addressee or any third party as a result of any reliance being placed on it.”
If a referee includes information that they know to be false or untrue, and the new employer relies upon them, the referee will be liable for damages for the tort of deceit.
6. Do I have to obtain a reference from a new employee?
Whilst there is generally no legal obligation upon a new employer to request a reference from a new employee, Regulation 19 of the Health and Social Care Act 2008 Regulations 2014 states that:
Persons employed for the purposes of carrying on a regulated activity must—
7.5. be of good character,
8.6. have the qualifications, competence, skills and experience which are necessary for the work to be performed by them, and
9.7. be able, by reason of their health, after reasonable adjustments are made, to properly perform tasks which are intrinsic to the work for which they are employed.
When undertaking an inspection, the CQC will consider whether the practice has met this requirement. To show compliance, dental practices must have a ‘robust recruitment processes’ in place, including undertaking relevant checks (for example, a DBS check). Although the regulations do not explicitly state that employer references should be sought, this would be an appropriate way of evidencing compliance.
In general, employers are advised to obtain references to ensure that the information provided during the employee’s application process is correct.
When making an offer of employment, it is sensible to make the offer conditional upon the receipt of at least one satisfactory reference. We advise including this requirement in the offer letter to ensure that the offer can be withdrawn if the applicant cannot supply one or if the reference that is provided contains something that concerns the employer. If this is not included, then the offer cannot be legally withdrawn on this basis.
If an employee commences work before references are checked, dismissing the employee without notice will not be possible. To avoid this, include a clause in the contract stating that the employment can be terminated immediately if an unsatisfactory reference is provided.
Julia Furley, Partner and Barrister
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.