While there is no legal obligation to provide a reference for an ex-employee, if any reference is inconsistent, you may land yourself in trouble!
A recent case concerned an employee who had significant periods of absence from work due to her disability. She was subsequently made redundant and, as part of the settlement, a reference was agreed.
The ex-employer provided an agreed reference but offered to talk to the potential employer on the phone. During this call, the ex-employer mentioned the significant periods of absence and is reputed to have said that she would not recommend the employee for the vacancy. As a result the offer of employment was withdrawn by the potential employer.
The employee claimed against both the ex-employer and the potential employer that she had suffered discrimination arising from a disability (ie lost the job offer because of her absence which was due to her disability), and on appeal was successful.
So, in future:
- Ensure you clarify who in the Company is permitted to give references since they need to know what they are doing.
- Any reference must be fair and accurate and, if you intend to include subjective information, make sure that the details cannot be interpreted as being discriminatory. It is worth bearing in mind that the employee can gain access to any personal data held by an organisation!
- It is best to state facts only (eg dates of employment, position held, reason for leaving)
- Ideally only give a reference in writing (a telephone caller may not be the ‘potential employer’ and there will be no proof of what you said in the conversation)
- Ensure that you do not vary from any ‘agreed’ reference (sometime included as part of a settlement agreement