Many employers may find the rules around employment references tricky to navigate.
What should be included? Does a reference need to be provided?
Can you give a bad reference? ACAS has recently published new Guidance on these questions, and we have summarised some of the key points below.
Do You Need to Give a Reference?
Aside from certain specified industries (such as those regulated by the Financial Services Authority), providing a reference for a former employee is optional.
However, if a former employer does provide a reference, then it owes the subject of the reference a duty to take reasonable care to ensure the information it contains is true, accurate and fair and does not give a misleading impression.
What Can a Reference Include?
The former employer can usually choose how much (or little) information to provide.
They may choose to provide basic facts such as dates of work, job title and salary.
References might also include:
a description of skills and abilities
details of relevant character traits, for example strengths and weaknesses
answers to specific questions asked by the potential employer
any opinions provided should be based on facts.
References should not include irrelevant personal information.
Giving a Bad Reference
Although giving a reference is usually optional, if you choose to do so, it must be accurate and fair and must not include misleading or inaccurate information.
Avoid subjective opinions or comments that are not supported by facts.
In view of the risks for potential liability for claims including discrimination, defamation, breach of contract and negligent misstatement, it is increasingly common for employers to provide standard factual references limited to dates of employment, job title and salary.
References and GDPR
The new ACAS guidance states that if a job applicant is unhappy with a reference provided about them, they can request a copy of any reference sent to a new employer.
However under the new General Data Protection Regulation, personal data can be withheld where it consists of a reference given or to be given in confidence for the purposes of the:
education, training or employment, or prospective education, training or employment, of the data subject
placement, or prospective placement, of the data subject as a volunteer
appointment, or prospective appointment, of the data subject to any office
provision, or prospective provision, by the data subject of any service
This changes the positions under the previous Data Protection Act 1998 regime, where the equivalent exemption only applied to references given (ie by the former employer) and not to references received (ie by the new employer).
This meant that where a new employer received a subject access request from an individual seeking a copy of the reference provided by their former employer, this was not automatically exempt from disclosure.
Employers should therefore seek specialist advice before disclosing references requested under a subject access request.
If you are providing an employment reference, ensure that the information given is fair and accurate and support any opinions with facts.
References should be consistent to avoid the risk of allegations of discrimination or breach of the implied term of trust and confidence.
ACAS recommend having a policy for dealing with reference requests, outlining what information to provide.
Employers should make sure that any references given are in line with any workplace policy on whether or not to give references and the information to be included.
Potential employers should also bear this guidance in mind when awaiting references for potential employees.
ACAS suggests that where a reference is not provided, or suggests that an applicant is unsuitable, it may be worth discussing any concerns with job applicants directly before reaching any conclusions. For further information about any of the above please contact Kathy Halliday in our Employment Law team on 0121 227 3711.