Privacy and Providing Job References

Your privacy policy should give clear guidance about exactly what records will be kept about employees that leave the company. Much of the data that was necessary while they were employed is probably redundant at this stage and should be destroyed.

It is sensible to keep the information necessary for constructing a job reference should the employee subsequently ask for one. You should ensure that people leaving your company are aware of what records will be kept for this purpose, allowing them to ask for their data to be removed should they so wish.

Provision

Employers are generally under no formal obligation to provide a reference for a departing or departed worker, except for those in the financial services industry who may be obligated to do so under the terms of the Financial Services and Markets Act 2000. However, it is best to have a company policy about whether or not you will provide references. It would be unusual for an organisation to have a blanket ban on them, but that would be a possibility.

Tone

If you write something that is derogatory, particularly if you cannot prove it, the subject could bring charges of libel, defamation of character or discrimination against you or your organisation.

It would be similarly problematic to write a positive reference for an unsatisfactory worker. This is especially true if they have been dismissed, because they could use it as evidence in a claim for unfair dismissal. The new employer could also claim damages if they had reason to believe that you did not give your reference in good faith.

You should write in the expectation that the person being described will read your description at some point. This is a safe frame of mind to be in when deciding how to word a reference in any case.

Content

Factual evidence should always be preferred, perhaps exclusively, to subjective opinion.

If you disclose personal information about someone in a job reference then you could be sued by them for invasion of privacy, regardless of whether the details you disclosed are true. If you feel that some personal details are necessary in order to represent the employee fairly, you should seek their written approval to allow you to include this information.

In the case of workers with criminal records, the Rehabilitation of Offenders Act 1974 states that, except for jobs in a number of excluded professions, they need not volunteer details about spent convictions when applying for new jobs. This extends to the provision of references, although whether you are obliged to provide answers to direct questions about criminal activities is less clear-cut.

Conclusion

Most employers provide references on request. Although they are not usually legally obliged to do this, it seems equitable given that, when they are hiring staff, they ask other organisations to do the same for them.

A reference should be an honest and factual record of a person’s career with an employer. Being selective about what to include, including unsubstantiated opinion rather than fact, revealing private information or discriminating in any way are all actions that could have legal consequences.

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