Employee References: Employer's Guide

References create legal risks for employers. Understanding your obligations helps you give helpful references while protecting your business.

Legal Framework

No General Obligation

You don't have to provide a reference. But:

• Must not discriminate in who you give references for
• If you give one, it must be accurate and fair
• Some industries require references (regulated sectors)
• Settlement agreements may require an agreed reference

Duty of Care

If you provide a reference, you owe duties to:

The employee:

• Reference must be accurate
• Must give fair overall impression
• Negligent misstatement can lead to claims

The new employer:

• Reference must not be misleading
• They may rely on your statements
• Can sue if they suffer loss from false information

GDPR Considerations

References contain personal data:

• Subject access requests can include references you've given
• Must process reference requests lawfully
• Employee can request copies (with some exceptions)

Types of Reference

Factual Reference

Confirms only:

• Job title
• Dates of employment
• Possibly final salary

Advantages:

• Minimal legal risk
• Quick to provide
• Consistent approach

Example:

"This confirms that [Name] was employed by [Company] as [Job Title] from [Start Date] to [End Date]."

Detailed Reference

Includes:

• Role description
• Responsibilities
• Performance assessment
• Reason for leaving
• Sickness absence
• Would you re-employ?

Higher risk - only provide if you can substantiate everything.

Standard Company Reference

Template used for all employees:

• Job title and dates
• Standard positive statement
• Nothing specific about individual

What You Can Include

Safe to Include

• Job title
• Employment dates
• Salary (if asked)
• Basic role description
• Factual performance data (documented)

Include with Caution

• Performance assessments (only if documented)
• Disciplinary warnings (still live at leaving)
• Sickness absence (may be disability-related)
• Reason for leaving (keep factual)

Avoid

• Speculation or opinion
• Hearsay
• Spent disciplinary warnings
• Health information (unless relevant and consented)
• Personal views

Common Scenarios

Scenario 1: Poor Performer

Employee was dismissed for poor performance.

Don't say: "John was lazy and incompetent."

Safe approach: Factual reference only, or: "John's employment ended following a performance management process."

Scenario 2: Gross Misconduct Dismissal

Employee dismissed for theft.

Option 1: Decline to give detailed reference.

Option 2: Factual statement: "Employment ended following disciplinary proceedings for gross misconduct."

Risk: Must be accurate - if employee was actually innocent, you're liable.

Scenario 3: Discrimination Claim

Employee brought (or is bringing) discrimination claim.

Risk: Refusing reference could be victimisation.

Safe approach: Give standard factual reference same as any other employee.

Scenario 4: Settlement Agreement

Settlement includes agreed reference wording.

Action: Provide exactly the agreed wording. Don't add to it or deviate from it.

Scenario 5: Sickness Absence

New employer asks about absence record.

Caution: High sickness may relate to disability. Disclosing could expose you to discrimination claim.

Safer: Either don't include, or give context: "Any absence was managed in accordance with company policy."

Liability Risks

Claims from Employee

Negligent misstatement:

• Reference inaccurate
• Employee lost job opportunity
• You were careless in preparation

Defamation:

• False statement
• Damages reputation
• Not protected by qualified privilege (if malicious)

Discrimination/victimisation:

• Refused reference
• Or gave poor reference
• Because of protected characteristic or claim

Claims from New Employer

If they hired based on your false reference:

• Can claim for losses
• Cost of dismissal
• Recruitment costs
• Any damage caused by employee

Protection: Qualified Privilege

References have qualified privilege:

• Can't usually sue for defamation
• Unless reference was malicious
• Or made recklessly

Malice means:

• Knew statement was false
• Or didn't care if true or false
• Ulterior motive

Best Practice

Have a Policy

• Decide who can give references
• Standard approach (factual only?)
• Approval process for detailed references
• Keep records

Who Gives References?

Options:

• HR only (consistent approach)
• Line managers with HR approval
• Designated person

Benefits of central control:

• Consistency
• Reduced risk
• Audit trail

Standard Template

For most employees:

"This confirms that [Name] was employed by [Company Name] as [Job Title] from [Start Date] to [End Date]. Our company policy is to provide factual references only."

Detailed Reference Process

If providing detailed references:

1. Check personnel file
2. Only include documented facts
3. Have second person review
4. Keep copy of what you send
5. Get sign-off from senior manager

Record Keeping

Keep:

• Copy of reference provided
• Date sent
• Who requested it
• Who authorised it
• Supporting documentation

Responding to Requests

What to Request

Ask for:

• Employee's written consent
• Specific questions (if any)
• Format required
• Deadline

Verification

Before responding:

• Verify requester is genuine employer
• Check consent is valid
• Confirm employee details

Response Time

No legal requirement but:

• 5-10 working days is reasonable
• Let them know if you'll take longer
• Don't ignore requests

Declining Requests

You can decline. If you do:

• Be consistent (decline for everyone)
• Brief response is fine
• Don't need to give reasons

Example:

"Thank you for your request. It is our company policy to confirm employment dates only and not to provide detailed references."

Regulated Industries

Financial Services (FCA)

Must provide references for:

• Certification staff
• Senior managers
• Certain roles

Must include:

• Disciplinary record
• Performance concerns
• Fitness and propriety issues

Healthcare

CQC and professional regulators may require references covering:

• Clinical competence
• Conduct issues
• Safeguarding concerns

Education

DBS requirements and safeguarding duties may require:

• Disclosure of concerns
• Safeguarding issues
• Suitability for working with children

GDPR and Subject Access

Can Employee See Reference?

References you've given:

• Generally disclosable under SAR
• Unless serious harm exception applies

References you've received:

• May be exempt
• Consider confidentiality to referee
• Weigh competing interests

Giving References Under GDPR

Lawful basis options:

• Legitimate interests (most common)
• Consent (from employee)
• Legal obligation (regulated sectors)

Checklist

Before Giving Reference

• Valid consent from employee
• Requester verified
• Personnel file reviewed
• Only factual, documented information
• No discriminatory content
• Settlement agreement checked (if applicable)
• Approved by appropriate person

Reference Policy

• Written policy in place
• Staff know who can give references
• Standard template available
• Process for detailed references
• Record keeping system
• Regular policy review