As a general rule, there’s no legal obligation to provide a reference. What is important is taking a consistent approach. Increasingly employers have developed a policy of not giving a reference (a shame really, since it can be very helpful to have a bit of extra insight). But whatever your policy you need to apply it consistently. If you play fast and loose in the giving of references you may face legal claims. Compromise agreements usually include an agreed form of words which will be used in perpetuity and produced upon request.
Make sure that reference content is true, fair and accurate. Employers often think (erroneously) that you can’t give a bad reference. You can if it is justifiable and objective i.e. “the employee was dismissed for gross misconduct”. What you can’t do is give an untrue one. Recently, we advised on the redundancy of two women. The redundancy was a genuine business requirement and the process was correctly followed.
The employer had an inkling of how the two employees might respond (extremely unpleasantly) and proposed to enhance the severance payment in return for a compromise agreement. The two harpies – sorry, employees – were an absolute nightmare. I appreciate that being made redundant isn’t a pleasant experience, but they were aggressive, untruthful and malicious. It was like dealing with fractious children.
They did go to an advisor who tried to argue that we had failed to consult properly and cited a very old case which sets out the law in relation to collective consultation. He got a dusty answer and the employees wisely decided not to proceed. Incredibly we almost foundered on the matter of the reference. It is always our advice that the contents of the reference should be objective, independently evidenced and true.
The employees submitted a lot of purple prose about how wonderful they were. Fortunately, it tended more towards how much they’d be missed rather than talking up their skills, so it’s not the sort of thing that is likely to get us into hot water. We didn’t like saying it because it really wasn’t true. By that time, not only would they not be missed, we couldn’t wait to see the back of them and did not think of them as warm and wonderful people. In the end we agreed to include their remarks in order to conclude the matter.
They were quite mulish enough to throw away an enhanced severance payment and try to argue unfair dismissal, however pointless. It used to be the case that employers would give a glowing reference to get rid of an unsatisfactory employee. I still come across people who do that. Don’t! If a prospective employer receives and relies upon a reference which is untrue (and the former employer knows is untrue) and suffers loss as a result, he may be able to claim against the former employer.
You have to be able to justify comments made in references and show that you honestly believe the contents are true. As references involve the provision of personal information, they are subject to the Data Protection Act 1998. An employee's consent is needed to process personal information, which includes providing information in a reference. You have to obtain written permission to share sensitive personal data.
For advice on giving or receiving references or other HR help, give us a call on 0845 644 8955 or email firstname.lastname@example.org.
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