In an increasingly litigious world, employers need to be cautious about the statements that they make in employment references in order to avoid potential claims relating to discrimination, defamation and negligent misstatement. It is little wonder, therefore, that many employers are providing references that are limited to basic, factual statements as to an ex-employee’s name, role and employment dates.
Although there are some limited exceptions, there is generally no legal obligation for an employer to provide an employment reference. However, an employer will need to be consistent in its approach in order to avoid possible allegations of discrimination.
Protection against discrimination can extend to ex-employees where they can show that the discrimination was closely related to a previous employment relationship. Therefore, any failure to provide a reference for a reason related to a protected characteristic (for example, sex, race, age, disability), in relation to an ex-employee, could result in a discrimination claim.
If a reference is provided, then the employer should ensure that the information it contains is true, accurate and fair and does not give a misleading impression. Furthermore, the content must not discriminate against the ex-employee on grounds of a protected characteristic.
Caution should also be exercised when providing information in relation to absence levels. In particular, making reference to any sensitive personal data, such as mentioning any specific medical conditions, could be in breach of data protection law.
In view of the potential pitfalls, it is best for employers to have a policy regarding who can give references, in what format, and what to include and not include. Limiting and controlling the sources of references should help with consistency as well as any issues with the content.
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