There is no legal obligation on an employer to provide a reference. If an employer does decide to provide a reference they can choose what information they provide, however, they do owe the individual a duty of care in the preparation of the reference in terms of the accuracy of the information they provide.
Where a reference is given the information provided must be true, accurate and fair and must not give a misleading impression. This means an employer can give a negative reference such as stating that the individual was dismissed for gross misconduct, or that they were under investigation for misconduct when they resigned voluntarily, provided these statements are true. If however, an employer includes information that was untrue either mistakenly or intentionally then the individual may be able to bring a claim against their former employer in the County Court for negligent misstatement or malicious falsehood.
The duty not to give another employer a misleading impression of a candidate for a role means that over the last few years it has become the norm to give only a basic reference setting out the dates of employment and job title on termination. This reduces the scope for arguments over whether an organisation relied on the representations made in a reference about an individual who later did not meet the required standards.
If an employer mentions high levels of absence this may be acceptable (if it is true) in some circumstances provided it does not state the reasons for the absence. However, where the employer refers to absence which is disability related it can give rise to a disability discrimination claim against both the employer giving the reference and the prospective new employer if they withdraw the job offer. Further, if the absence was not disability related but was still stated to be sickness absence this amounts to processing of special category personal data under the Data Protection Act 2018. Unlawful processing of special category personal data can be reported to the Information Commissioners Office and it will be investigated. If the individual did not get the job as a result of the reference then they may also be able to claim compensation on the basis that they have suffered “material or non-material damage” as a result of the breach.
There is no harm in providing a detailed reference, whether positive or negative, as long as before you write it you think about what you are going to say and ensure that it is true, accurate and not misleading. As the highest risk lies in providing a negative reference we would advise that you retain any records or information relied on in drafting the reference in order to justify the contents if needed.
Please note this article should only be considered as guidance and should not be taken as specific legal advice. For further advice on this topic contact Kelly Gibson at Kelly.Gibson@tayloremmet.co.uk and 0114 218 4307.