Before You Agree to Provide a Work Reference ...Read This

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Have you ever been asked to provide a reference for an ex-employee? This can be a tricky situation if your company doesn’t have a consistent policy to deal with reference requests, or you’re simply not sure how to go about writing a proper work reference. After all, you don’t want to land in legal hot water as a result saying something you shouldn’t have.

The first thing you need to find out is whether the reference you’re providing is personal (i.e. given by you as an individual) or professional (i.e. given on behalf of your business). If it is the latter, and particularly if it’s on letter headed paper or emailed from your company email address, then your business can be held responsible for the contents of the reference letter.

What could possibly go wrong?

Whether the reference your business provides is in oral or written form, you have a duty to your former employee and their new employer to take reasonable care to make sure what you say is true, accurate and fair.

A bad reference that you cannot substantiate has the potential to land you in hot water. You could be sued for damages if the person didn’t get the job or suffered financial loss as a result of your reference. In extreme cases, you could be taken to court for defamation or discrimination.

Conversely, if you provide a glowing reference for an underperforming employee who goes on to perform badly in the new job, the new employer could also claim damages against you.

Protect your business

As you can see, providing a work reference isn’t always straightforward as far as the law is concerned. Whether you’re motivated by goodwill, wishing to help a previous employee to further their career, or you simply want to convey your honest opinions, from one employer to the other, the overriding aim must be to protect your business first and foremost.

To avoid any possibility of a ‘good deed’ backfiring on your business, you should have a clear policy in place on how to handle requests for work references.

  • Establish whether or not your business will give references, and what information they will contain
  • Specify who is authorised to give a reference, and whether sign-off is required
  • Avoid inconsistency in the way that your business deals with references

How to give a reference

The good news is that, as a business, it is entirely up to you how you wish to treat requests for references. There’s nothing at all to say that you have to give references for any of your employees past or present, unless it explicitly states otherwise in a contract of employment or you work in a regulated industry such as financial services.

One option is to simply refuse to give references for any employees, and keep things simple. Except that a failure to give a reference without any explanation on your part could be interpreted to mean that you had a problem with the employee in question, and that you may be discriminating against them on the grounds of sex, race, disability, religious belief or sexual orientation, for instance. If you choose to introduce a blanket policy of not giving references, you should ensure that this policy is explicitly stated in any response to a reference request – just to avoid misunderstandings.

Your second option is to agree to give work references, but limit their contents to factual information, such as job title, salary and other benefits, employment start and end dates. If this is your company’s policy, make sure that it is explicitly stated on every reference provided, so that no-one can read anything into the fact that the reference doesn’t contain full details.

Alternatively, you may decide that your company will provide full references for its staff. These will typically include the bare facts, plus the employee’s key responsibilities and an assessment of their performance in the role. You may also give your views on the person’s personal qualities in relation to their professional performance, their timekeeping and reasons for leaving.

It is important to ensure that every reference given by your company is true accurate and fair. In order not be mislead in any way, do not

  • Fail to respond to specific questions without giving an explanation
  • Fail to disclose key information
  • Present the information in a way that gives the wrong impression or conclusion
  • State that the person is suitable for the position unless you qualify that this is your personal opinon

Writing a reference for a problem employee should be approached with extra caution. It is perfectly possible to write a ‘bad’ reference as long as the information is accurate, you can substantiate it and the reference is not malicious. Poor performance or a dismissal for serious misconduct should always be addressed (even if it might be easier or ‘nicer’ to leave them out) but do make sure you include any positive points too, in the interests of balance.

Finally, all references should be marked ‘private and confidential’ and for the attention of the intended recipient. While you are under no obligation to let your ex-employee see the reference you’ve provided about them, their new employer may have to, particularly if you’ve given your consent. If it is important to you that the employee should not see the reference (or at least some parts of it), you should make this clear to the new employer.

 

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Friday, 16 November 2018
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