The following is a brief summary from Employment law specialist David Dixey, of the main issues that should be considered so as to avoid unwelcome repercussions if a reference is prepared without due care. Employers should be reminded of the general duties and responsibilities relating to the provision of a reference to an employee or ex-employee.
There is no legal obligation on an employer to provide a reference for an employee or ex-employee. Employers are therefore generally entitled to refuse to provide a reference. However, it is advisable to have a policy on:
A policy will avoid confusion and potential claims of unfairness, or even breach of contract, should references be provided indiscriminately. If an employer declines to provide a reference where it can be shown there is a custom or policy to do so, a disgruntled employee may successfully argue that the employer is in breach of a term in their employment contract entitling them to a reference.
There are a few exceptions to the general rule. The main exceptions are:
Care must be taken to ensure that a refusal to provide a reference is not discriminatory because of any of the protected characteristics under the Equality Act 2010: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
An employee may have an arguable discrimination claim if he or she can demonstrate that the refusal to provide a reference was motivated by the above and that consequently they have received less favourable treatment due to a protected characteristic.
An employee or ex-employee who is denied a reference because he or she has previously brought discrimination proceedings against the employer (or given evidence on behalf of others in relation to such a claim) would be entitled to bring a claim of victimisation under the Equality Act.
Some employees work in regulated sectors where specific legislation or rules require that employers provide a reference or other relevant information upon request. Similar rules apply in respect of employment in schools.
A contract of employment may contain an obligation requiring the employer to provide a reference, although probably rare. Employment Settlement Agreements (termination agreements) often contain a clause requiring the employer to provide a reference in an agreed form if approached by a prospective employer. Unless the employer qualifies this obligation within the Settlement Agreement, failure to comply may amount to breach of contract. Where an employer usually provides a reference, failure to do so may amount to breach of implied terms relating to custom and practise.
If you require advice or assistance relating to employment law matters, contact David Dixey of Holmes & Hills LLP on 01376 320456 or firstname.lastname@example.org.