LEGAL CORNER: A brief guide to repercussion-free reference writing

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Many of us, at one time or another, will ask a friend, employer, supplier or other work contact for a reference, and some of us will ourselves be approached as a potential referee. So, what are the key issues you should consider before agreeing to provide a formal employment reference?

In most cases there is no obligation to provide a reference, so you could refuse.

Remember that giving a reference carries a certain risk, so if you regularly provide references you should have a policy.

You owe a duty both to the subject and the recipient of any reference you provide, so you must ensure any information you give is true and fair and you must not discriminate on any basis. Having a clear policy will help if you are called upon to defend any allegations of discrimination.

If it is your policy to provide purely factual references, confirming only an employee’s start and finish dates for example, consider including a statement to this effect so that the lack of personal detail does not reflect badly on the person in question.

If you decide to provide a more comprehensive reference, consider including details about honesty, time-keeping, absence, performance, discipline and reason for leaving. You should also include a reasonable disclaimer and take care to avoid making any comments that could be interpreted as discriminatory on disability grounds.

Throughout the reference you should only cite honestly-held views; you cannot be successfully sued for a reference if you believed, and can show that you honestly believed, its contents were correct when provided and that it was given without malice. You can be sued if the reference you give is untrue, or compiled maliciously - if you either knew it to be untrue or did not care whether or not it was true - and you can be sued for negligence if you provide an inaccurate reference.

You should be especially careful, when providing details about an employee’s sick record, not to divulge sensitive personal health data. Instead, concentrate on providing quantitative information about how many days absence an employee has taken without revealing any sensitive personal data. If you are specifically asked to disclose reasons for an employee’s absence, exercise caution and always get consent from the employee before disclosure.

If you would like professional legal advice on employment references, please contact the team at George Ide on 01243 786 668 for an initial conversation.

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Robert Enticott. Partner, Business Services

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George Ide, LLP

Solicitors of Chichester and Bognor Regis