Reference reply

If you’re asked to provide a reference to a future employer for an employee or ex-employee, consider providing a basic reference only using our reference reply. This limits your exposure to possible negligence claims.

Provision of references

Firstly, there is no general legal obligation on you to provide any employee with a reference. In fact, it’s often safer not to do. However, since a refusal to do so is likely to prejudice the employee’s ability to secure alternative employment, at least think about providing a basic reference. This is one that simply confirms the employee’s employment, length of service, job title and job duties and provides no additional information. There’s one exception to the general rule though and this is where you refuse to provide a reference, or provide a bad reference, because the employee has made allegations of unlawful discrimination or has brought employment tribunal proceedings to enforce their rights under the Equality Act 2010 or has given evidence as a witness in discrimination proceedings brought by another employee. This is known as victimisation. So do take care when deciding whether to provide a reference. A simple refusal without considering the particular background of the case could result in allegations of victimisation. Secondly, if you do agree to provide a reference, you’re not bound to complete an employer’s standard reference request form. You can ignore it and provide your own version of a written reference. Because of the legal risks in providing references, many employers now opt to provide basic references only. Our Reference Reply is a bare reference, and it makes clear that it’s your policy to provide basic references only but that this shouldn’t be seen as implying any comment about the employee or their suitability for employment with the future employer.

Legal risks

There are two main risks to which you expose yourself in providing a reference:

1. Liability to the employee. You owe a duty of care to your employees in the provision of references. Your duty is to take reasonable care in the preparation of the reference. If the reference is factually untrue or inaccurate or gives an unfair or misleading overall impression and as a result the employee suffers financial loss or damage (for example, a job offer is withdrawn or they are dismissed), then you may be liable for negligence. 
2. Liability to the reference recipient. If the reference is negligent (for example, it’s misleadingly positive about a dishonest employee) and a new employer employs that individual in reliance on the negligent reference, if the individual then causes the new employer to suffer financial loss or damage, you could again be liable for negligence, this time to the new employer. 

That’s not to say you can never give a “bad” reference, provided your statements are factually accurate and can be supported by evidence.

Disclaimer

Because of the provisions of the Unfair Contract Terms Act 1977 (UCTA), there is no sure way of avoiding the possibility of liability for negligent statements in references. Our reference reply does include a detailed disclaimer which seeks to avoid liability but, unfortunately, such a disclaimer is subject to a statutory “reasonableness” test under UCTA. Where a reference purports to give facts which are ordinarily within your knowledge as the employee’s employer, you probably can’t successfully exclude liability to the recipient using a disclaimer, but it’s nevertheless still worth adding it in to all references that you give. As far as the employee is concerned, the disclaimer probably can’t exclude liability for negligence anyway since the reference is confidential and not intended for them.