References

It is standard practice for prospective employers to request an employment reference from the job appliants’ current or most recent employer.

A former employer is not legally obliged to provide a reference, unless there is an existing express contractual agreement to do so (such as may be found in a negotiated compromise agreement. The problem for the former employee in a refusal by the former employer is that he/she could lose the offer of a new job.

Even if a reference is given it need not be comprehensive. However, anyone giving a reference has a duty to take reasonable care in producing it. This means that they should avoid including, or over-emphasising, opinions that may give a misleading impression of the former employee. Generally potential employers need information on the employee’s:-

a) Position held,

b) Responsibilities,

c) Length of employment

d) Time keeping

e) Reason for leaving, and

f)  Competence.

Obvious difficulties are presented if an employee has proved to be unsatisfactory, or was dismissed in circumstances that would present a problem for a future employer, -such as for dishonesty or some act of gross misconduct. The former employer then has to decide if he wants to give any reference at all, a basic factual reference, or a more detailed reference. Care will need to be taken if the former employer wishes to write a detailed reference.

In writing a reference the former employer owes a legal duty to the former employee to provide a true, accurate, and fair reference; which must not give a misleading impression. So as long as the reference is accurate there is no further obligation to make it absolutely comprehensive. If the reference is misleading, as the former employer has been negligent in producing it, then the former employee may be able to pursue a court case against the former employer.

The prospective new employer may also be able to sue the former employer if a negligent reference is produced about an individual when that reference is relied upon, and loss is suffered as a consequence. This highlights the dangers in giving a good reference about an individual that the former employer knows to have been seriously inadequate, or under qualified, or dishonest in his/her work.

Particular care and attention should be taken by an employer when being asked to provide a reference where a discrimination claim might have been alleged. If the employer then refuses to give the individual a reference, when normally a reference would be given, this refusal may amount to an act of unlawful victimisation. This provides protection to both current and former employees.