Important. Please read the following paragraph before continuing.
Leah Ley-Wilson Recruitment provides this information purely as a very basic guide and will endeavour to keep this information up to date. However, we are not employment law specialists and we will not accept responsibility for the use of said information by any third party.
Please note that, in our opinion, the best information on this topic is provided on the web by the REC and we recommend that you verify your requirements either via the REC themselves or via the DTI, both of whom you can find at www.rec.uk.com
The other port of call is the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which you can find at www.legislation.hmso.gov.uk/si/si2003/20033319.htm
There is no legal obligation on any employer to give a reference unless they have previously agreed to do so in the contract of employment. Employers must take extreme care in providing references and should not include any information in a reference without first checking the truth of any comments made. It is not unlawful to provide a 'bad' reference if the information given is accurate, truthful and not misleading and it is given in good faith without malice. Please have a look at the REC website for good examples.
- Candidates' rights
A candidate or an employee who believes that a Referee has acted negligently by providing an inaccurate reference can bring a claim for damages against them for the loss suffered. There can of course be no action for negligence if the statement is true.
The candidate or employee could also bring a claim for defamation. Defamation occurs where a false statement is made or repeated which is prejudicial to a person's reputation. It is for whoever makes the damaging statement to prove that it is true so any statements made in a reference should therefore be factually true and backed up with written evidence. Misleading omissions or innuendoes could also be defamatory and the REC website has some examples of such misleading information.
- Rights of the recipient of a reference
If that recipient relies on a reference, which is inaccurate because it was carelessly drawn up, and thereby suffers loss, they could bring a claim for damages against the Referee on account of his negligence.
- How can the Referee protect themselves?
The Referee may include a provision in the reference excluding any liability for the content of it. This can act as a deterrent against an action in negligence, however, the enforceability of such a provision cannot be guaranteed.
- Candidates' right to see a Reference - Data protection considerations
Although a candidate or an employee has no general right to see a reference given about him or her it must not be assumed that references will remain confidential. The Data Protection Act 1998 has created the right for an employee to request sight of information, including written references about him/her, which an employer keeps on file. However the individual giving the reference also has the right not to have their personal data revealed without their consent.
Therefore upon such a request an employer will have to balance any duty of confidentiality it has towards the giver of the reference as against the duty to provide to an employee information held on file about him or her. Provided that the identity of the referee is obscured the employer this is unlikely to breach its duty of confidentiality to them. However if the referee has not consented to the disclosure of the reference or it is not possible to keep the referee's identity confidential, for instance by blanking out names and other identifying information, then this may be grounds for refusing to disclose the reference.
- Job offers 'subject to references'
Most job offers will be made 'subject to references' and it is vital that if a potential employer would withdraw an offer of employment upon receipt of unsatisfactory references that offers are made 'subject to references'. Failure to make a job offer 'subject to references' could result in an action for breach of contract being brought against the potential future employer if bad references mean that a job offer previously made unconditionally is then withdrawn.
- Permanent Candidates and Clients
The REC Model Terms of Business for the Introduction of Candidates by an Employment Agency place the onus on the client to take up references and satisfy themselves as to the candidate's suitability. Even if a client requests you, the agency, to take up references you should advise the client to verify the truth of any references obtained in order to avoid liability for any loss suffered by the client as a result of a false or misleading reference.