Earlier this year, many London employment law solicitors took note of the case of Hincks v Sense Network Ltd. The case is seen by many UK employment lawyers as offering some comfort to employers who write a negative reference – provided they have taken reasonable care to do so. In the last few days, ACAS, the advice and conciliation service, has issued new guidance on references. The information will be helpful to both employers writing employee references, and to employees who request references from their previous employers. With that in mind, our London employment lawyers have put together their top tips for writing an employee reference.
Get the basics right when writing an employee reference
Generally, there is no legal obligation to provide an employee or former employee with an employment reference, although there are some industries, such as those governed by the Financial Conduct Authority (as in the Hincks case) where references must be provided. It is not usual for a contract of employment to include an obligation on the employer to provide the employee with a reference either. However, anyone writing an employee reference (or asked to write one) should consider whether their organisation has a policy on writing employee references. It may be that employment references are prepared by the HR function, and there is a policy about only providing certain information in employment references.
Bear in mind that taking a piecemeal approach to whether or not you provide a reference for employees could lead to allegations of discrimination. A top employment law firm will be able to advise further on this.
If you are providing an employee or former employee with a reference, take care to get the individual’s basic details correct – name, dates of employment are key. As we’ll see below too, other information included in the reference must also be accurate.
Consider what should be included
In the absence of a company policy on references that determines what should go in to the reference, it’s worth taking time to consider what you should include. Although there is not generally a legal obligation to provide a reference, if you do decide to write a reference, any of the top employment solicitors will stress how important it is to provide a reference that is fair and accurate.
Every reference request will be different. Some will ask specific questions about your former employee, perhaps relating to attendance, skills and abilities, and reasons for leaving employment; others may offer the opportunity to add free flow comments about the individual. When completing any employee reference, bear in mind that you must give a fair and accurate assessment of the individual, based on facts and not on assumptions. For example, the Employment Tribunal in Cox v Sun Alliance Life Ltd was critical of a statement in a reference that the individual would have been sacked if he had not resigned.
Providing a ‘bad’ reference
If an employer is requested to provide a reference in respect of an employee whose performance or other attributes means that the reference will be negative, it’s vital that the reference does not mislead or is inaccurate. In the Hincks case mentioned above, the court considered that the employer had done neither in its reference. In these circumstances, making sure that any negative information is set in context is key.
The impact of GDPR on employee references
When an employer provides a reference to another employer, he or she is processing personal information about the employee – perhaps even sensitive personal information. Under the new data protection regime, which requires explicit consent in these circumstances, where do references sit?
The ‘exceptions’ which would mean an employer did not need explicit consent do not apply – there is no legal obligation to provide a reference – and there is unlikely to be a contractual obligation on the employer to provide the reference. Does the employer have a legitimate interest in processing the information? Arguably not – it is in the former employee’s interest that the employer provides the reference, but it isn’t really in the employer’s interest. An option for any employer concerned about his obligations under GDPR would be to ask the organisation requesting the reference to provide evidence of the former employee’s consent to the processing of data to provide the specific information requested in the reference.
Ultimately, providing references for former employees is likely to be a regular occurrence for many businesses and organisations with a significant number of staff. A clear HR policy on writing employee references will often take the ‘guess work’ out of the process and ensure that references are fair and accurate.
At OTS solicitors, we take pride in working with employers to provide accurate and practical employment law advice in any scenario, whether it’s creating HR policies or dealing with disciplinary and grievance matters. To talk to one of our employment law solicitors, call us on 0203 959 9123.
Posted on: Friday, 14 September, 2018