You say it best, when you say nothing at all.
Listen up Employers! There is no statutory duty to provide an existing or ex-employee with a reference*. In addition, assuming you can substantiate it, you can provide a “negative" reference.
In a recent case, a disabled ex-employee brought claims of unlawful disability discrimination against both her future employer and her previous employer. Her claims were for the withdrawal of the job offer, from her future employer. She additionally claimed for the negative (verbal) reference from her previous employer, which subsequently led to the withdrawal of the job offer. The ex-employee claimed that both of these were "unfavourable treatments" arising in consequence from her disability. She won on appeal.
So Employers Beware! The finding that a verbal reference alludes to sickness absence could, on the face of it, amount to disability discrimination, is worth noting. Should you decide to provide references, take reasonable care in the preparation of the reference which must be true, accurate and fair, not give a misleading impression and must not be discriminatory.
You have a legal joint ‘duty of care’ to both the recipient of the reference and the employee/ex-employee that any reference given is truthful. Given that there is generally no obligation to provide a detailed (or indeed any) reference, ask yourself - should you simply take the easy option and provide bland references and/or say ‘nothing at all’?
Implement a sagacious plan to minimise possible disputes, i.e. have a policy and stick to it.
Complimentary Manager's Guidelines on giving employee references from Catherine Kane Associates.
* Some industries (such as those regulated by the Financial Conduct Authority) are legally required to supply specific information which exceeds more than bare minimum references to any other regulated employer. ________________________________________
This is one example of the varied and interesting arrange of questions that I get asked, as a HR consultant. Sometimes it’s good to share these more generally and out-side the traditional DOs and DON’Ts. So, I’ve developed a quirky and occasional store of insights, to help employers avoid the ‘Fly-Traps’, which I’ve called The Little Shop of HRsTM. The next insight from The Little Shop of HRsTM will look at the associated risks for employers who are in receipt of a reference.
Disclaimer This article contains information about recent employment law rulings. The information is not advice, and should not be treated as such. The article is provided for information purposes only. No claim is made as to the accuracy or authenticity of the content of the information or associated links.
Catherine Kane, Director of eponymous HR consultancy and iCloud HR provider and is a recognised lead for organisations’ exploiting the benefits of social media through their employees.