What can we say?
Providing a reference has become something of a risky business. Several high profile cases have made it clear that you really must take care in what you say or write. So how can you play it safe?
Legally obliged?
Let’s start with the good news. A reference request lands on your desk. Are you legally obliged to provide one? No. But here’s the bad news. A failure to do so may harm the employee’s prospects, and could be discriminatory if you’ve provided references in the past. So let’s assume you’re going to respond. What are the risks?
Why care is needed
Although most references are provided in good faith, sometimes an employer will provide a glowing, exaggerated or misleading reference to help a friend or ex-colleague, or even to encourage a difficult employee to leave.
Pitfalls
If you provide a glowing reference in the knowledge that the information is exaggerated or not true, you may be sued for negligence and liable for all the new employer’s recruitment, training, settlement and legal costs. Likewise, if you refuse to provide a reference or provide information that is inaccurate or misleading this could result in a claim by the employee or ex-employee for being discriminatory, vindictive or a breach of trust and confidence.
Bad company. These latter situations are particularly prevalent when parting company with a member of staff on bad terms, before completion of disciplinary proceedings, or because the employee has at some time raised a grievance or claim against the company.
How to respond to a request?
Firstly, ensure that you have a policy on who has authority to provide a reference, remembering that any information given is on behalf of the company. In providing a reference it’s important that the information given is not unfair, inaccurate, discriminatory or victimises the employee.
Tip 1. Keep to verifiable facts such as: start date; positions held; competence in the job (if this can be substantiated by performance appraisals); time-keeping.
Tip 2. Make sure that subjective comments or opinions on the person’s performance or capability are avoided and that the information provided is no more than required.
Crafty questions
If you receive a reference request by letter, fax or e-mail, consider carefully what is being asked and respond accordingly. But do be cautious of responding to leading and ambiguous questions and don’t be drawn into making speculative comments. For example, “How do you think Mrs Smith will cope with the new job of Office Supervisor?” Be careful of a request for a reference by telephone, as verbal information given can be as incriminating as written communication (yet it’s often much easier to let something slip that could land you in trouble). The best solution in this case is to ask that the request be put in writing, using the reason that the company’s policy is not to give or discuss references by telephone.
Tip. Finally, don’t assume that a disclaimer placed at the end of the reference will provide the necessary protection. It will provide no defence if, at first glance, the reference given is untrue, inaccurate and unfair.
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