Employment References – what is your duty as an Employer?

How many times have you wondered whether you should provide a reference for an ex-employee? Do you have to? How much information do you have to provide?

What you need to know is that there is no general duty to give a reference in respect of an existing or former employee, although a duty may arise in certain circumstances such as regulatory requirements, express agreement or custom and practice.

If you, as an employer, decide to provide a reference then you should ensure that your practice in respect of providing references is consistent. Failure to do so, may open you to allegations of discrimination or even breach of the implied duty of trust and confidence.

Where a reference is provided, an employer owes certain duties to both the former/ current employee and the prospective new employer.

Duty to the prospective new employer (recipient):

• Making a knowingly false statement with the intention that the recipient would rely on it could render you liable in the tort of deceit.
• If you fail to take reasonable care to ensure that the reference is accurate you may be liable for negligent misstatement.

Duty to the former or current employee (the subject):

• You must not provide a discriminatory reference
• The reference must not amount to defamation or malicious falsehood
• You must take reasonable care to ensure the accuracy of facts stated in the reference.
• Even if the facts are accurate, make sure that they are not presented so as to give an unfair overall impression.
• The information must not be misleading.
• You should not mention any complaints or allegation concerning the employee of which the employee is unaware and has not had the opportunity to comment on as this may breach the implied duty of mutual trust and confidence owed to existing employees.

If you have any employment law or HR queries please contact us now on 020 7903 6888 or email contact@davenportsolicitors.com

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