References: What exactly does the employer have to provide?

There are three words that can instill fear in any employee when they are potentially being offered a new job. They are subject to references. There is still some confusion over what obligations employers have when it comes to references and what they actually have to consist of. The first thing to note is that in actuality, there is no legal obligation on an employer to provide any reference.[1] However if the employer does decide he doesn’t want to provide a reference he should be incredibly careful with regard to this policy because if he decides to pick and choose who he gives reference to it could lead to potential allegations of discrimination which is not what any employer wants.

If the employer is willing to give a reference it can be via either the medium of email or telephone as both are a valid form of reference. Although of course any claim against a telephone reference is going to be entering into dangerous territory unless comprehensive notes were taken at the time by the employer receiving the reference.

Within the reference itself there are certain things for an employer to consider. They must not include anything within the reference which could be classed as discriminatory[2] which may sound obvious but it can still happen. On top of this they can not make a defamatory statement within a reference (although any claim against a defamatory reference will only be successful if the Claimant can prove that the reference was done with malice and that the employer knew the information was incorrect at the time of supplying it).

The most important thing to consider with regard to the reference is the accuracy of it. If the reference is deemed to be inaccurate they could potentially be sued for negligent misstatement. The main point with regard to this is that the employer is under a duty of care to provide a reference that is true, accurate and fair and does not give a misleading impression.[3] If the employer fails in this duty they could then potentially be found liable.

So, the main thing that can be said with regard to references is that they need to be accurate to avoid any potential liability and civil court claims. However this does not mean that the reference always has to be positive. As long as it follows the criteria laid out in Bartholomew, the reference can say negative things about the employee. So they are able to include things such as disciplinary record, honesty, absence record and any other relevant matters which could impact on any future employment as long as they are able to substantiate the comments.

Therefore in the future when thinking about moving jobs it’s always best to try and stay in your employers good books so as to avoid any risk of negative comments from your employer which he can back up in any reference.