Workers leaving: providing references
The legal implications of references and how you must provide one if it is specified in your employee's contract.
Except for certain employers in the financial services sector, employers don't generally have to give a departing employee a reference unless this is a requirement of the employment contract.
However, sometimes employers routinely provide their employees with a reference when they leave.
Note that if you refuse to provide a reference for an employee who has brought an unlawful discrimination claim against you, the employee could also bring a victimisation claim against you if they believe you are withholding the reference because of their discrimination complaint.
Legal issues
You should consider carefully the legal implications of providing a reference:
- make sure that what you say is true, accurate, and a fair representation of the person
- an ex-employee could bring an action against you for libel, discrimination, or defamation of character through a court or tribunal if they consider the reference to be inaccurate
Employees' access to references
Employees may be able to gain access to a reference if they take legal action, eg a sex discrimination claim. See how to prevent discrimination and value diversity.
Individuals may also gain access to a reference if they make a subject access request to the organisation to whom the reference has been provided. They will be able to request a copy of the reference from the prospective employer to whom it is provided.
While the organisation giving the reference in confidence is under no obligation to provide access, the receiving organisation may be.
Unsatisfactory employees
In addition, you should avoid giving an unsatisfactory employee a good reference, because:
- a good reference could weaken your case in any claim for unfair dismissal by the ex-employee
- any new employer could claim damages if the employee proves to be unsatisfactory and material information was omitted from the reference