What is employment law surrounding references?

Emily Parkin

The start of a new year can be a popular time for employees to change jobs and so we look at the law surrounding the provision of references.

Generally speaking, there is no duty on an employer to provide a reference unless there is an express (or implied) agreement to do so. There is also no general obligation for an employer to reply in the particular format requested by the person requesting the reference.

If the club does not want to provide a reference there is no legal obligation to do so except:

• Where a refusal to provide a reference would be discriminatory because of any of the protected characteristics under the Equality Act 2010, even where there is no longer an employment relationship.

• Where the employee (or ex-employee) has previously brought discrimination proceedings against the club, given evidence or information in connection with such proceedings, made an allegation of unlawful discrimination or done anything else under or by reference to the discrimination legislation. In such circumstances a refusal to provide a reference may result in a separate and additional claim of victimisation.

• Where there is an agreement to provide one, either in a settlement agreement or a contract of employment (whether express or implied).

• Some employers in the financial services sector are required to obtain, and to provide when requested, references including prescribed information but that will not apply to golf clubs.

Responding to a reference

When a club responds to reference requests relating to former employees it is important to bear in mind that the club will be legally responsible for the contents of the reference. Legal claims could potentially be made by the subject or recipient of the reference against the club for matters including defamation, negligent misstatement, breach of contract and discrimination. It is therefore advisable to have a policy in place regarding which employees or level of management can give a reference, in what format (verbal or written) and what it can include.

Matters that could potentially be covered in a reference are dates of employment; role undertaken; performance in the job; disciplinary record; absence record; time-keeping; and reason for leaving.

When providing a reference, reasonable care must be taken to ensure that the information given is true, accurate and fair, and does not give a misleading impression. Take care to ensure that: the reference is provided in accordance with any club policy; if only providing a brief factual reference with dates and job role or roles, explain that it is club’s policy to provide a reference only in this format (if that is a correct statement); the reference is consistent with the real reason for any dismissal and any written reasons provided; the reference does not contain inaccurate statements; the reference provides a balanced overview of the employee, although it does not need to be full and comprehensive; the overall picture the reference gives is not misleading and does not unfairly present a poor image of the employee; the employee is aware of any complaints or performance concerns that are referred to in the reference; any information about absence complies with the employer’s obligations under data protection rules; any comments about performance, attendance or sickness absence do not contravene the disability discrimination provisions of the Equality Act 2010; there is consistency in the provision of references between different employees to protect against any allegations of discrimination or victimisation; comments on suitability for a new job are given with care because they may be less easy to justify objectively; the reference is marked ‘Private and confidential for the addressee only’; it may be the case that the employee was subject to pending, but unresolved, disciplinary proceedings at the time they left the employment of the reference-provider. The duty of care owed to the recipient of the reference means that the provider will need to refer to the proceedings in the reference, or the reference will not be true and accurate. However, the obligation to be fair means that the provider will need to give details of the unresolved status of those proceedings. The reference provider should avoid commenting on the likely outcome of the proceedings had they been concluded.

Further, a club should act cautiously when making any statement about a former employee, even if a statement is not intended to be a reference.

Only factual references

To limit the risk of legal liability and the complexities of the above, it may be advisable to adopt a club policy of limiting the content of references to factual matters only, being dates of employment and role undertaken with a brief description of duties. The club is perfectly entitled to do this, as long as it provides the same type of reference to all employees and former employees (so there is no risk of a claim of discrimination), and it has no specific statutory duty to provide a fuller reference.

Disclaimers

The reference might also include a disclaimer, although a clear disclaimer on its own is only sufficient to avoid liability for negligent misstatement to the recipient of a reference. In order to avoid liability to the subject of the reference (that is the current or former employee), the club would need to obtain the employee’s prior agreement to a reference being given on that basis. That may be possible if the reference is agreed as part of a settlement package, or such agreement may be implied if the club has a well-publicised policy that makes it clear that all references are given on that basis. An example of a reference disclaimer might be:

“It is our policy only to provide references containing information as to employees’ roles and dates of employment. This should not be seen as implying any comment about the candidate or his / her suitability for employment as [POSITION] at [PROSPECTIVE EMPLOYER].

“This reference is given to the addressee in confidence and only for the purposes for which it was requested. It is given in good faith, and on the basis of the information available at the time it is given, but neither the writer nor [NAME OF CLUB] accepts any responsibility or liability for any loss or damage caused to the addressee or any third party as a result of any reliance being placed on it.”

Data protection

Golf club employers might feel a touch nervous about providing an employee’s personal data (and perhaps special category data) to a prospective employer upon request when it comes to data protection. There are arguments that consent can or should be obtained, but there are problems with consent and explicit consent in the employment context due to the imbalance of power. The majority of employers rely upon the lawful processing condition of ‘legitimate interests pursued by the controller or a third party’ under Article 6(1)(f) of Retained Regulation (EU) 2016/679, UK GDPR. If a club is unsure on this point, advice should be taken.

Latest development

A consultation as to whether it should be mandatory for employers to provide references for all their former employees was announced by the government in its response to the Women and Equalities Select Committee report on the use of non-disclosure agreements (NDAs) in discrimination and harassment cases. This proposal is designed to stop employers using the possibility of not providing a reference as a threat or bargaining tool against their current employees. If implemented, this would mean that employers could, for the first time, be required to provide at least a basic reference for any former employee.

In the event of any queries regarding the provision of references, please contact the Alistair Smith at the NGCAA on 01886812943 or [email protected]

 

What is employment law surrounding references?

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