Employer References – speak now or forever hold your peace…

February 7, 2017

Employers often contact previous employers for a reference when they are recruiting a new member of staff. Depending on how the previous employment role ended, this can lead to concern as to quite how to respond.
In recent years there has been a move towards employers providing a basic factual reference (or even refusing to provide any written reference) as there is concern that you should not say anything negative about a former employee.
It is true that a reference must not discriminate against the employee in respect of a protected characteristic such as on the grounds of race, religion, sex, disability, sexual orientation or any other protected characteristic under the Equality Act then.  As it is not always obvious what comments could be seen to be discriminatory, then it is clearly safer not to refer to personal characteristics at all!
If you do wish to provide more than a factual reference, just setting out the period of employment, then this must be true and accurate.  It must not be defamatory or contain any malicious falsehoods.
If there are grounds for concern that perhaps fall short of having been confirmed to be true (for example, if you had suspected theft but this had not been formally reported or proven) then care should be taken with the wording given. Using an exclusion clause to avoid liabilities to the new employer and ensuring the reference is marked and kept private and confidential can provide additional safeguards to the referee.
You can also express opinions provided they do not amount to negligent misstatement.  This means that the employer providing the reference should be able to show a reasonably prudent employer would have expressed such opinion.
The safest option is therefore to stick with a factual reference, but if you do feel compelled to say more then you can do, as long as you tread carefully!

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