Wake-up call – What to do when giving a poor reference for an ex-employee

Are you leaving yourself open to a claim for discrimination if you give a poor reference for an unimpressive ex-employee? Philippa O'Malley explains

The problem
I have been asked to give a reference for a member of staff who left me to go to another hotel. Unfortunately, he wasn't the best of employees and I was glad to see him go. I am loathed to give him a glowing reference but have heard that giving a bad one can leave me open to court action. Is that true?

The law
Employers generally have no obligation to provide a reference for former employees. However, references are a fact of life and are frequently requested. Refusing to provide a reference could (depending on the reason) leave you open to a claim for discrimination or victimisation.

If a reference for the former employee is given, it must be true, accurate and fair and must not give a misleading impression. Balancing these requirements can be tricky; you could find yourself liable to both the former employee (if the reference is discriminatory or defamatory, or is maliciously or negligently untrue) and to the prospective new employer (if you knowingly or negligently provide false information).

Giving your former employee a "bad" reference is not necessarily unfair, provided it is balanced and accurately represents the former employee's employment with you. For example, recently the courts considered a reference that included negative allegations about an employee. These allegations had come to light after the employee left his job and, therefore, could not be substantiated or investigated properly. However, the employer was careful to point this out in the reference.

The judge concluded that the reference successfully notified the prospective employer of significant information in a way that did not prejudice the employee. In other words, it was fair to refer to the existence of the allegations against the employee provided it was made clear that they had never been substantiated.

Expert advice
Walking the tightrope between the conflicting liabilities to the former employee and prospective employer is not easy. This is particularly the case where there were problems with the former employee - should you include negative comments about a former employee (which could be thought of as unfair) or omit them (which could present an inaccurate impression)?

Common strategies for minimising the risk include:

â- Including a legal disclaimer in the reference stating that you do not accept liability for any loss or damage to anyone who relies on the reference.

Unfortunately, neither strategy is foolproof - a brief factual reference could omit crucial information (and so paint a false picture for the recipient) and a disclaimer is only effective if it is reasonable.

Check list
â- Adopt a policy on the format and content of references and apply it consistently.
â- Make sure any reference is fair, accurate and provides a balanced overview of the employee.
â- If a brief factual reference is given, make it clear that this is your policy and that it does not have any bearing on the employee's character or performance.
â- If a disclaimer is used, make sure that it is reasonable.
â- If there is a chance that the reference might be challenged, take some legal advice before you give it.

Beware!
Even though employers can include negative comments about former employees in a reference (provided such comments are fair and balanced), you should be wary about making statements that could be contentious. If in doubt, take legal advice to ensure that the content of the reference does not leave you open to a claim.

Contact
Philippa O'Malley is an employment solicitor at Boodle Hatfield
pomalley@boodlehatfield.com