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Emma O'Connor
Emma O'Connor,
HEAD OF TRAINING
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References - The risks of being too honest
15 July 2014

We report on the recent case of AB v A Chief Constable concerning the issue of just how much information a previous employer should give when providing a reference.

Are employers under an obligation to provide an employment reference?

In general there is no obligation to provide an employment reference. However, an employer will be under an obligation where there is a contractual obligation. For example, there could be a clause in an employment contract or where there is a contractual obligation set out within a settlement agreement. The form of the reference is usually agreed too and annexed to the settlement agreement – flag on the individual’s file to always send the agreed reference!

Should we comment about performance or trustworthiness?

It is advisable to provide factual information only relating to name, position and salary of the employee in question. If an employer provides an inaccurate statement which is relied upon, they can be sued by both the individual (if they fail to secure a job because of a misstatement) and also by the prospective employer (if they rely on misinformation). It is therefore important to check references being sent on the organisation’s behalf.

What about information about a former employee’s conduct?

In AB v A Chief Constable, a police officer resigned during disciplinary proceedings against him for gross misconduct in order to accept a new job in a regulatory body. The police force first provided a factual only reference then a second reference with details of the disciplinary proceedings and his extensive sickness absence. When AB complained about the reference, it was found that providing a factual only reference to AB’s new employer was misleading, and that the force had a duty towards the new employer to supply them with information of B’s disciplinary matters, subject to the Data Protection Act’s protection of sensitive data.

However, the court found that the police force should not have provided the new employer with details of AB’s extensive sickness absences as that was sensitive personal data. The court weighed the force’s duty to not to mislead AB’s new employer against the fact that AB had relied on the promise of a factual-only reference when deciding to resign. They found, despite the duty of care towards the new employer, to send a more detailed reference in this case breached AB’s legitimate expectations and should not have been done.

How can an employer protect itself when providing a Reference?

Have a clear policy on providing references setting out:

  • Who can provide a reference
  • That no employee can write their own reference
  • When a reference will be provided and when it will not
  • Stick to the facts – most organisations accept a standard reference
  • Be aware that providing information about a person’s sickness absence will breach data protection rules
  • Do not provide confidential references unless you have consent

For further information, please contact our Employment Team on 0118 952 7284 or submit an enquiry.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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