References - should we agree to requests for information

Writing a reference
Writing a reference for an employee seems a perfectly reasonable thing to do. After all, the new potential employer will need to know if the employee turned up late every Monday morning or had a bad attitude to female colleagues. On the other hand, the new employer may want confirmation that their new employee is a star in the making and that you are very sad to be potentially losing him.

What are the potential problems
It is important that any reference is true and accurate. It may be that the employee was late every Monday morning. However, the author of the reference may not have known that the employee's supervisor had allowed this and a shortened lunch break so that the employee could drop off his or her son at school.

In writing a reference there is both a duty to the new employer and the previous employee. If you make a false statement you could be sued for damages by the employee if he or she is not successful in obtaining their desired new role.

Again, the same is true if an employee is described in glowing terms by his previous employer as they are glad to see the back of him. However, the truth is that he is lazy and has a bad attitude. Further, he is a disruptive influence and has been disciplined a countless occasions. In this case the new employer may seek to sue the old employer for damages based upon the fact that they have taken on a new employee who they would never had employed had they known all of the facts of his previous employment.

Requests for a reference
Most employers deal with requests in one of three ways. The first way is to refuse to give any type of reference. This is not particularly helpful to anyone. Further, most employers seek information by way of references and therefore they should feel able to meet any requests in a positive way.

The second way of dealing with references is to send a standard reference giving such details as job title, dates of employment, salary and sickness record. Again, this is of limited assistance to the new employer and may not help the employee in his search for new employment.

The third and final way of dealing with requests is to give a full reference and provide all information requested. It is important that the reference is prepared by a person with authority to write the reference on behalf of the company and even more importantly is aware of the employee and has the knowledge required of the employee to write the reference. If the employee was dismissed then this should be stated and the reasoning behind the dismissal should be explained. If the person left by way of a settlement agreement then this should be so stated.

What steps do we need to take as an employer

• Have a policy on references and stick to it. Make staff aware of this policy.
• Make someone in the Company responsible for writing references and ensure that others know that they have no authority to reply to requests on behalf of the Company.
• If an individual is asked to write a reference then they should do so as an individual and not as a representative of the Company. They should make this clear in the reference that the views expressed are those of the individual and not necessarily the Company.
• Include a disclaimer with all references excluding any liability for any inaccuracies. However, this will only be over very limited effect.
• If you wish to adopt a policy of no references or limited references then make it clear that this is your policy for all employees.
• Be reasonable and be truthful. If you are both then there is little risk in providing references.
• If you are at all concerned by a request then seek legal advice.     

The above blog represent the views of the author and is not meant to be relied upon as specific legal advice on any particular set of facts. If in doubt always seek legal advice.

At Chiltern Solicitors, we have a HR system to take care of all of your staffing needs. If you have ever struggled to get some quick advice on an employment issue or have failed to find previous notes on a staffing issue then the system is for you. Ever business employing staff will benefit from having advice readily accessible, staff documents kept securely and in order and a telephone helpline. For more information watch the video on our website at www.chilternsolicitors.co.uk or call us on 01582 439795 for a free demonstration and to discuss how the system can be set up to help you.  

At Chiltern Solicitors we are experts in employment and staffing issues. For regular updates on employment law issues sign up on our website. www.chilternsolicitors.co.uk or email us at info@chilternsolicitors.co.uk