Most job offers are conditional on the receipt of satisfactory references.  As a result, business owners often receive reference requests about their staff from other employers but are unsure of their legal obligations both to the recipient of the reference and to the individual who is subject to the reference.

This guide aims to clear up the confusion and uncertainty which often surrounds reference requests.

1. Am I legally obliged to provide a reference?   There is no legal obligation for you to provide a reference for a former or existing employee.

2. What are my obligations if I choose to provide a reference?  Reasonable care must be taken to ensure the reference is true, accurate and fair.

3. What could happen if the reference was inaccurate? You would be liable for negligent misstatement and could be ordered to pay compensation if the former employee suffered damage as a result.

4. How can I safeguard my business against this?  You should agree who can provide references on the company’s behalf and what type of information will be included.  This will eliminate the risk of inconsistencies which could give rise to a potential discriminatory claim.  Providing factually correct information such as job title and dates of employment and only providing references in writing (with copies kept on file) will significantly limit any exposure to a claim.

5. Can I provide a fuller reference with subjective comments, if I wish?  Yes, but care needs to be taken to ensure the reference passes the true, fair and accurate test.

6. How can I protect my business from a colleague providing a personal reference to an ex-employee?  You will need to ensure that your employees make it clear that the reference is provided in a personal capacity and that the reference is not printed on your letterhead or sent from the company’s email or postal address.

7. Should a reference include details of disciplinary action?  If you have a policy of providing only dates employed and position held it is not misleading not to mention any negative information.

8. Who should the reference be sent to?  A written reference should be addressed to the named individual who has requested it and marked ‘’strictly private and confidential’’ and ‘’to be opened by the addressee only’’.

Taking time to consider your company’s approach to referencing will safe guard the interests of your business and save your management team time and aggravation, so it’s certainly worth thinking about.

By Bruce Ramshaw

Principal Consultant