Employment References – what do you need to know as an Employer?

Our clients often ask us whether they are required to give references for former employees. In most cases, there is no issue but where someone has left under awkward circumstances, the decision may be more difficult.

Here are some simple guidelines to follow.

There is no obligation to provide a reference for a former employee, except in certain specific cases, such as industries regulated by the Financial Services Authority, or if you are bound by a settlement agreement to provide a reference.

If you choose to provide a reference, you can decide how much information to give, but it must be factually accurate and fair. We would recommend keeping a reference brief and factual, for example, to confirm the dates of employment and what the employee’s job role was. If you decide to give a factual reference, then you should provide this type of reference for all employees to avoid any risk of a claim for discrimination.

The reason we recommend keeping references short and factual is that it reduces the risk of claims against you for providing a misleading or incorrect reference.

When preparing a reference on behalf of an employee, it is best to keep in mind that the employee is entitled to obtain a copy of any references given by making a request under Data Protection legislation.

Where an employee is dismissed or made redundant and a settlement agreement or COT3 is signed, then it is common to agree on standard wording for future references in the contract. This can still be the standard factual reference, and there is no obligation to provide a more personal reference in these circumstances. By agreeing to reference as part of a redundancy or settlement agreement, it will prevent future difficulties further down the line.

A reference can provide important information to a potential employer, and we would recommend asking for references before employing a new member of staff. You can ask for a reference at any point during the recruitment process, and we advise that job offers should be conditional on receiving satisfactory references.

When requesting a reference for a new employee, it is normal to ask for confirmation of facts such as job title, dates of employment, and number of sick days taken. You can also ask more detailed questions, such as the reason for leaving, details about skills/abilities and even questions regarding character and suitability for a role, however, be mindful that asking for too much information can put the recipient off from answering. Keeping your request reasonably short and simple is more likely to get a response. Please note that an employer is not obliged to provide a response to your request for a personal reference and may respond to say that they will be providing a factual reference in line with their policies and procedures.

If you don’t receive a reply to a reference request, then you must decide whether to employ anyway, and if you do, we always advise implementing a 6-month probationary period to assess the employee’s suitability for the role.

If you have any questions about requesting a reference or writing one, our expert employment solicitors would be happy to arrange a free initial consultation to discuss the matter further.

Tel:       01245 893400
Email:  info@backhouse-solicitors.co.uk
Visit:    17 Duke Street, Chelmsford, CM1 1JU
Or send us a message through the Contact Us page on this website.