References
Interestingly, there is no statutory duty on employers to provide an employment reference, but they usually do because of the following reasons:
- It’s good and established practice to do so
- It may be discriminatory or deemed to be discriminatory to refuse to provide a reference
- There may be a contractual term that the employer will provide an employment reference
- Refusal to give a reference may have adverse consequences for you (eg a grievance)
- A negligence claim could be made by the new employer against the previous employer.
If you do provide an employment reference, it must be true, accurate and fair.
If your employer or school provides an employment reference, it will probably include details relating to your overall performance, your conduct, your sickness, your disciplinary records, the reasons why you left employment and details of any dismissal. You may be able to challenge a reference if you think it’s unfair or misleading.
Duty of care
The previous employer owes the recipient of the reference (ie potential future employer) a duty of care if the recipient suffers a loss because of inaccuracies in a carelessly drafted reference.
The previous employer can provide a very brief reference, but they must not use it as a means of concealing something serious (including details of active but incomplete employment procedures that are or were related to allegations of misconduct, safeguarding breaches, absence or underperformance, whether these were investigated or substantiated).
In addition, the previous employer is liable for any comments they make about the employee that is outside of or not connected to the provision of an employment reference – such comments are likely to amount to a breach of the employer’s duty of care (eg comments made on social media).
Putting it right
If you believe the reference provided by your previous employer is unfair or misleading and that you have ‘suffered a loss’ (eg a job offer has been withdrawn), you may be able to claim damages in court (for loss of earnings, stress or injury to feelings).
To avoid the pitfalls and problems related to references, it’s advisable, wherever possible, to have sight of and agree on your employment reference in advance of your departure.
Q&As
Should the school have a policy for providing references?
It’s advisable to have a ‘statement’ in place that sets out a straightforward process for providing an employment reference and to whom should an employment reference request be sent/handled by.
Should I check for anything else before I write an employment reference?
Yes, before you go ahead and write a reference, it’s advisable to check the following:
- Has the employee consented to the provision of an employment reference?
- Is there an ‘agreed reference’ already in place that the employer/school is obliged to provide on each separate reference-request occasion?
What information might a typical employment reference include?
Typically, an employment reference will include the following:
- Dates on which the employment commenced and ended with the school
- Job title
- A brief description of key responsibilities held (or you can attach a job description)
- Any other key responsibilities held that are not stipulated in the above
- Details of any formal disciplinary/capability warnings issued in the last two years
- Details of any other formal actions that are underway/unresolved/outstanding
- Reasons for leaving employment.
How should I deal with an unsatisfactory reference?
Firstly, it’s important to establish whether an offer of employment is conditional on receiving satisfactory references. If such an offer is conditional, it’s important to check the following before withdrawing ‘the offer’:
- You should establish whether the disclosed information is relevant to the role the will be taking on or the organisational setting, and if so, whether it makes the candidate unsuitable
- Validate the disclosed information for factual accuracy and integrity, and establish that it’s not based largely on opinion or matters outside of the candidate’s control
- If the reference is ambiguous, you should take steps to check what the referee meant precisely and satisfy yourself either way
- Where information is insufficient, you may choose to seek more information from the candidate, the referee or an additional referee
- Finally, where there is any doubt, it’s advisable to allow the candidate to provide an explanation for any shortfall in the information provided or clear up any misinformation or misunderstanding arising from the reference.
Can I see or apply to see the reference that has been provided on my behalf?
There are two ways in which an individual can try to see a reference provided on their behalf.
The first is by making a subject access request under the General Data Protection Regulations (GDPR), either to the employer that provided the reference, the employer that received it or both. However, data protection legislation provides an exemption from disclosure of confidential employment references; therefore, both employers could legitimately refuse the employee’s request.
The second way would be through court proceedings if the individual took the view that a negligent reference had been given. The court is likely to order disclosure of the reference within the context of any such proceedings.
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