With the various claim risks involved in providing inaccurate or misleading references, it is advisable that references are both provided for former employees and obtained for new recruits.
What do I include in a reference?
When providing a reference, you must take reasonable care to ensure that the information contained is true, accurate and fair. You must also be mindful of not drafting the reference maliciously or negligently and it should not contain any defamatory statements. If, however, the individual regularly turned up late, for example, and you have evidence of this, then this can be included.
What happens if it is inaccurate?
You run the risk of a negligence claim to recover damages for lost earnings (if they can demonstrate that the reference cost them the job, and not, for example, their inability to do the job).
Also, the prospective employer can claim against you for its wasted recruitment costs and damages if it can demonstrate that without a misleadingly positive reference, it would not have hired the employee.
How do I combat this?
Many employers prefer to provide brief and factual references, providing only limited information, for example the employee’s job title, salary and dates of employment. While this is not as helpful to a prospective employer, it avoids the above-mentioned risks.
What if they want more detail?
If you receive a request for further information, you must ensure that any further information, even if given verbally, is subject to the same duties as a written reference.
How about subject access requests?
You are entitled to refuse to disclose a confidential employment reference as you are covered by an exemption under UK data protection legislation.
- For more advice, contact Hannah Belton on 01267 493130 or hbelton@morganlaroche.com
