25th April 2022

A quick reference guide to references

We often have too many questions to answer during our Ask The Expert webinars so here is the answer to a question which we haven’t addressed. This question is about references and whether there is a requirement to provide one and, if so, what it should include.

This is a question we are frequently asked as the reference request doesn’t always come from the person you thought was brilliant but often comes from the person who was late and whose performance was not up to scratch. Remember as well that the person might be asking for a reference from you hoping that you will say something bad so that some liability might attach to your organisation.

The first thing to say is that there is no legal requirement to provide a reference. The only real exceptions to that are where there is a contractual requirement to provide one (as to not to do so would then lead to a claim for breach of contract) or where there is a professional or statutory requirement to do so.

The initial advice is therefore to proceed with caution and think do I really need to give a reference? If not, should you? And if you decide to, be mindful of what you say.

That brings me on to the most important thing about references: they must be accurate and not misleading. So that means that theoretically you can say whatever you want about the person provided that what you say is accurate and does not mislead the person who is reading the reference.

For example, if the person was frequently late to work (and you could support that assertion) then it would be fine to say that they had timekeeping issues but you should not say that they had attendance issues. You might know what that means but the person reading it might misinterpret the language to mean that they were often absent (which is not true in this case).

We would always suggest that you have a policy about what you will include in a reference and perhaps have a centralised process for preparing and providing them (such as via HR). We now most commonly see employers providing factual references just including the employee’s name, job role/duties and period of employment.

Another point to make if you are person receiving the reference and it has made you question whether you want to offer that person the job, if you have made the offer and it is not conditional and the employee has already accepted, then you have a contract of employment. You will therefore need to pay their notice pay if you decide to withdraw (terminate) the offer to avoid a breach of contract claim against you.

If you require advice on this or any other employment law topic, then please get in touch with the Blackadders Employment Team and please sign up for our next Ask The Expert webinar, details here.

Blair Duncan, Solicitor


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