What you should include in a reference

What you include in a reference will depend on what you're asked by the prospective new employer, but there are some things you should take into consideration to ensure that the information you give is objective, accurate and lawful.

• Avoiding discrimination and defamation
• Short-form references
• Disclosing disciplinary allegations
• Disclaimers

Avoiding discrimination and defamation

An employer cannot refuse to give a reference for discriminatory reasons, or in order to punish an employee for having previously asserted discrimination, or blown the whistle. It must also take care to avoid any discrimination in the drafting of a reference. Unfavourable comments about an employee’s attendance or sickness absence may constitute disability discrimination, for instance. Any inconsistency of approach in the giving of references is likely to increase the chances of employees feeling that they have been discriminated against.

An employer may also be liable under the Equality Act 2010 if it withdraws an offer because of a discriminatory reference including, for instance, because a previous employer brings to its attention that the employee has brought a discrimination claim, or made allegations of discrimination.

Defamation and malicious falsehood:

An untrue statement that damages the reputation of the employee may amount to defamation. In the context of a reference this is only likely to happen if the person who makes the statement knows, or has reason to believe, it is untrue or has not troubled to check whether it is true. Referees should, therefore, be able to show either that any such comments were true, or that they believed them to be true.

A comment may be defamatory simply because it is both damaging and untrue, whether or not the person who made it reasonably believed it was true, if it is made by someone who is unauthorised to give a reference, or made to someone who does not have a corresponding interest in receiving it.

If the person giving the reference has made the untrue comments maliciously (either knowing them to be untrue, or recklessly indifferent as to whether they were true), the employee may also be entitled to bring a claim for malicious falsehood.

Short-form references

Because of the risks associated with giving references, it is becoming more and more common for employers to have a policy only to provide references which state the position held by the former employee, the dates of employment and perhaps salary. In these cases the employer will usually make it clear in the reference that this is its policy, so that the absence of detail does not count against the employee. Even if the employer has adopted such a policy, it may decide not to give such a reference for an employee who has been dismissed following a proper procedure for gross misconduct, or at least not to do so without mentioning that dismissal.

Disclosing disciplinary allegations

Those employers not covered by the Financial Services and Markets Act 2000 may consider that they do not have an obligation to mention allegations which have never been proved when giving a reference, for instance, because the employee has resigned before any disciplinary hearing. However, public sector employers have additional public law duties to act with honesty and integrity. These may require them to provide details of any disciplinary allegations against the employee when giving a reference. Provided the position in relation to any such allegations, or any disciplinary proceedings, has been accurately summarised, the employer will not usually be in breach of any duty owed to the employee. It may be in breach, however, if it overstates the position or summarises it inaccurately.

Disclaimers

Employers often include a disclaimer of liability in relation to any negligent misstatement. This will usually be effective to prevent a claim by the prospective employer, but is unlikely to be effective to prevent a claim by the employee, except in the unlikely event that the employee has agreed in advance to the reference being given on that basis. However, the public sector duty to act with honesty and integrity cannot be circumvented by using a disclaimer in a reference.  Also, because of the Unfair Contract Terms Act 1977 (UCTA), any such disclaimer will only be effective in far as it is reasonable in all the circumstances.