Duty of care in the giving and taking of references.
There is no legal obligation to provide references for ex-employees (unless they have a contractual right to one, or where membership of a regulatory body demands a member to both obtain and provide references).
However, if an employer chooses to provide a reference they do have a legal obligation to put reasonable care into preparing it. If the referee fails to do this and is negligent in preparing a reference, the employee or the prospective employer may be entitled to take action to recover any damages suffered. In giving a reference, an employer must make sure the information it contains is not only true and accurate but is also fair.
The employer should ideally observe the following guidelines when giving references to reduce the possibility of being accused of negligence in the giving of a reference:
- Obtain a second opinion within the Company on the content of the reference;
- Treat all requests for references equally and avoid discrimination;
- Consider adding a disclaimer to the reference, to provide protection against potential action;
- Limit the contents of the reference to statement of facts and those opinions that can be substantiated with supporting evidence.
If an employer refuses to give a reference because the employee has complained of discrimination in the past this refusal could result in action being taken against them on the grounds of 'victimisation'. Such a claim may be upheld if the employee concerned can establish that the reason a reference was refused was because of a complaint he or she made in the past.
Employers may be obliged to disclose the contents of references they receive to the employee concerned if asked. The Data Protection Act only allows an employer to refuse to disclose the contents of a reference in circumstances where the referee has withheld his or her consent to its disclosure, and it is not possible to maintain the confidentiality of the referee.
Employers also have a duty of care to the employee in receiving a reference in that they are required to take reasonable care in how they interpret it and act upon its contents.