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These articles gives a general overview only and the legal position at the time of writing them. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print.

References and the Law

The practice of employers when writing references for employees has significantly changed over the past few years partly as a result of increasing concerns about legal liability. The employer who gives an inaccurate or misleading reference to an employee in negative terms may find that they are subjected to a claim of negligence or defamation from that employee. On the other hand, the employer who fails to mention serious concerns about an employee's performance and conduct could face a claim in negligence from the employee's future employer.

In general terms, the legal duties for employers when writing references are as follows: -

(a) To take reasonable skill and care to ensure the accuracy of the facts in the reference.

(b) To ensure that the facts are not presented in such a way as to give the reader an unfair overall impression of the employee.

(c) To ensure that the information in the reference is not misleading.

Although legal claims are relatively rare, the risk of litigation has persuaded many substantial businesses to adopt new policies on the provision of a reference.

The legal position is that, although the employer has to take care if they write a reference, there is no legal duty to provide a reference for employees or ex-employees in the first place. In normal circumstances, an employer can simply refuse to write a reference altogether.

As a less draconian alternative, many businesses have chosen to adopt a ‘factual references' policy'. This means that the only references that will be given state the employee's dates of employment and the position in which the employee was employed. This kind of reference is risk free but, of course, it is of little benefit to a prospective employer.

The spread of the ‘factual references' policy' has had an unhelpful effect on the labour market more generally because new employers are often unable to obtain essential information about their potential prospective employee's competence and conduct. However, it is clear that this kind of policy is permissible.

The circumstances where employers need to be careful about not giving references is in relation to employees who have raised issues of discrimination or made discrimination claims at the Employment Tribunal. In these cases, the refusal to write a reference (where a reference would normally be given) may amount to an act of victimisation and give rise to a claim for compensation.

The diminishing value of references has highlighted the importance for businesses of introducing probationary or trial periods at the start of employment. It is normal for employees to be given a 3 or 6 months trial period during which their employment is carefully monitored and can be terminated with relatively short notice if it is unsatisfactory.

October 2008

This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case.  Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Paul Archer or Lauren Harkin on 0800 135 7917 or alternatively by email on Paul.Archer@lemon-co.co.uk or Lauren.Harkin@lemon-co.co.uk.

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