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Q& A - Do I have to provide all of my ex-employees with a reference?

Napthens - January 14th 2016

It has been the case for some time, that there is no legal obligation on an employer to provide an employee with a reference, and an employer is entitled to refuse to provide a reference if requested to do so.

At Napthens we have seen the majority of our clients opt to provide only an objective reference, the rationale behind this being to limit any potential liability regarding defamation if being too honest, or negligent misrepresentation; amongst a whole host of other potential risks.  Be aware that if you provide incorrect information on an ex employee there will be risks.

Whatever your policy, whether you provide object or subjective references or do not provide references at all, it is paramount that your approach and response to requests are consistent.

On this subject matter most recently we saw the EAT make a finding in the case of Pnaiser v NHS England and Coventry City Council that; an unfavourable oral reference given about an employee partly due to her sickness absence was deemed to amount disability discrimination.  The consequence of the unfavourable reference given by he employer in that case resulted in the employee’s offer of employment with a new employer being withdrawn.   With this case in mind particular care should be given if you are opting to comment on an employee’s performance or sickness absence in any reference.

Our top tips when providing a reference:

  • Consistency in approach and compliance with any policy on the provision pf references
  • If you opt for the provision of a factual reference, ensure the reference is brief and to the point and that you confirm that the it is the company’s policy to provide an objective reference only
  • Ensure any reference does not include any inaccurate statements
    Ensure that the reference is not misleading and does not present a poor image of the employee.

We are frequently asked whether an employer has an obligation to respond to a written request for specified information from a Job Seekers Plus Authorised officer.  The answer is yes, you are under a legal obligation to provide the information requested within the deadline, and it is a criminal offence to intentionally delay a response or obstruct the authorised officer.