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If In Doubt, Say Nowt!

Baines Wilson expert Caroline Rayner

Providing references is a minefield for employers. On the one hand, you owe a duty to the employee in question to ensure the information it contains is true, accurate and fair. Yet on the other hand, you owe a duty to the recipient.

This can cause problems for employers where the two conflict, particularly where there are issues regarding sickness absence or disciplinary matters.

This was highlighted in the recent Employment Tribunal case, Mefful v Citizens Advice Merton and Lambeth Limited, in which an ex-employer told a prospective employer that they would not re-employ the candidate due to his sickness absence. You can read the case in full here.

What should an employer do in these circumstances?

This case serves as a reminder to employers that giving references, either good or bad, can cause problems for them.

If they give an unduly positive reference in respect of an employee that turns out to be unsatisfactory, it may breach its duty to the recipient.

If it gives a negative reference, it could breach its duties to the employee, and may end up in hot water particularly if sickness absence is mentioned. 

This also causes a problem for the recipient as relying upon a discriminatory reference, for example by withdrawing a job offer, could in itself be discriminatory.

For this reason, unless there is an obligation to do otherwise, our advice is to keep references short, factual and basic. They should include no more than dates of employment and job titles, and of course a disclaimer! If you have to go further, make sure everything is true and none of the content is discriminatory! 

If you have any queries regarding references or any other HR queries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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