Your Referencing Duties
In our last blog, we dispelled some of the myths surrounding employee references.
Even though there is no legislation precisely covering providing references, employers do have three clear duties to consider:
- A duty of care in negligence
An employer is under a duty to provide a reference, which is in substance true, accurate and fair. The reference must not give an unfair or misleading impression overall, even if its discrete components are factually correct. An employer will be liable for references that give a misleading impression of the employee due to omission of information.
- An implied duty of mutual trust and confidence
An implied contractual term of trust and confidence may be breached by the provision of a misleading reference.
- A duty not to make defamatory comments or those, which amount to malicious falsehood
There is no liability for libel, provided the employer believes the information in the reference is correct and is given without malice. However if untrue malicious comments are made, then the employer may be liable.
Can an employee give a reference that gives information about an employees sickness absence?
A number of issues can arise if a reference asks for personal information about a former employee’s sickness absence. This area is covered by the following:
- Equality Act 2010
Once a job offer has been made, employers can ask questions about matters such as sick days absence when taking up references. The employer providing the reference should discuss the response to the question directly with the employee. This will ensure that the response is accurate, factual and creates an overall fair impression.
If the question refers to an operation the person providing the reference should – with the employee’s permission – identify the length of the period of absence due to hospitalisation. Merely stating the number of days absent will not give a fair overall impression.
Employers must remain aware of disability discrimination where the employee has a disability and any absences relate to that disability.
- Data Protection Act 1998
Disclosing information relating solely to the number of days of absence will not amount to the processing of sensitive personal data. However, more detailed information which is held about workers’ physical or mental health may amount to the processing of sensitive personal data.
How much compensation could employers be liable for if they supply an unfair reference?
If an inaccurate reference is given, attempts should be made to correct the error by sending an accurate reference and a covering letter as soon as possible. Supplying an unfair reference could result in a claim for compensation.
The amount of compensation will vary depending upon the type of claim the employee brings, the loss suffered by the employee and the facts of the case but for Breach of Contract this can be up to £25,000.
“We advise our clients to have a set procedure providing standardised references” says Matthew from Consensus HR. “Company policy should ensure that ‘easy’ facts about employees are given, such as job title, salary and employment dates”
“This ensures and that the same type of information is provided for everyone. It helps to ensure that the business meets its obligations. Plus, it makes providing references very time efficient; the information needed is available direct from the person responsible for the company’s payroll” adds Matthew. “A reference request can be delegated and provided very quickly.”