References must be accurate and fair but how do you deal with a request when there are unanswered allegations against an employee? Katee Dias explains
I have received a reference request concerning one of my former employees. After her employment ended, it emerged that there were some performance problems. Had she still been employed, I would have started an improvement plan but, as she had left, I never mentioned these issues to her. How do I respond to the reference request?
Whenever an employer provides an employment reference, they should bear in mind the following key legal principles:
â- the reference should not mislead the recipient.
Balancing the above obligations can be tricky, particularly where there are unanswered allegations against the employee. Is it fair to mention such concerns in an employment reference when she does not even know of the alleged issues? But if you do not mention your concerns, surely you would be misleading the new employer through your omission?
Employers do need to think very carefully before referring to unproven allegations in a reference. Consider whether you can investigate the allegations further so you are sure of your facts. If you genuinely believe the allegations to be true and that is a reasonable conclusion for you to draw, you should, as a general rule, disclose your concerns in the reference. However, choose your words with care and make it extremely clear that the allegations have not been formally investigated or proven and so the recipient should not jump to conclusions.
An alternative option is to decline giving a reference altogether. However, this can lead to other difficulties. The refusal to give a reference may result in adverse assumptions being made about the employee. Also, if it is your usual policy to give employment references for former employees, the employee concerned may wondered why she is being treated differently and could, for example, allege that you are discriminating against her because of some protected characteristic, such as her sex.
Therefore, if your normal practice is to give a reference, your best option would be to provide a carefully worded and truthful reference in response to the reference request, disclosing your concerns but making it clear that the allegations remain unanswered.
â- An employer has a legal duty to take reasonable care in the preparation of any reference it gives.
â- Always ensure that comments you make about your former employees are true, accurate and fair.
â- Although the reference does not need to be full and comprehensive, ensure it gives a balanced overview and be careful not to mislead the recipient.
â- Include "disclaimer" wording stating that you bear no liability for any loss that arises from reliance on the reference.
â- If you are contemplating refusing a reference request, think carefully if this is not your usual practice and do not do it in retaliation where, for example, the employee has lodged a discrimination claim against you.
â- Consider adopting a formal practice on references - for example, only providing a factual reference confirming dates of employment and job titles.
â- Remember that oral references are just as valid as written ones. Comments made verbally are almost never "off the record" in the context of employment references.
â- If you receive a reference that refers to unproven allegations, do not make assumptions. Instead, undertake your own investigations into the issues raised, for example, by speaking with the employee concerned.
â- Do not forget about your data protection obligations as most references will contain personal data about the employee.
If a misleading or an untrue, inaccurate or unfair reference is given, it can lead to all sorts of actions, including claims for negligent misstatement and/or defamation.
Katee Dias is a senior solicitor at Goodman Derrick LLP