MUST YOU PROVIDE A REFERENCE?

As a present or former employer, you can be obliged to provide a subjective reference (beyond confirming dates of employment and role(s)) if there is an express obligation to do so in the employment contract, or because it’s customary in a particular industry – and is, therefore, an implied contractual term. It is, of course, very much the custom for yacht captains and departmental heads to provide references. Indeed, it’s poor form in yachting not to do so, and a refusal can be bad for a captain and/or boat’s reputation.

If it’s going to be your policy, as employer, not to provide subjective references, then you should make this your formal policy, and stick to it, to avoid potential claims of discrimination or breach of the implied trust and confidence. In particular, if an employee (or former employee) has previously initiated discrimination proceedings against the employer, or alleges unlawful discrimination, a refusal to furnish a reference could lead to an additional claim of victimisation.

10 PRACTICAL TIPS ON GIVING A REFERENCE

When furnishing a reference, you, as an employer, should ensure that:

1. No statements are inaccurate

2. The reference offers a fair overview but does not need to include every detail

3. The reference does not convey a misleading impression

4. The reference does not unfairly portray the subject in a negative light

5. The subject is informed of any complaints or performance issues referred to

6. Information regarding absence adheres to the employer's data protection obligations

7. Comments on performance or absence abide by disability discrimination law

8. The reference is marked as being private and confidential and for the addressee only

9. Your policies on the subject are adhered to

10. If providing just dates and job roles, your policy of only providing this should be referred to

REFERENCE CONTENTS

A reference should always set out the duration of employment and specific role(s) undertaken. The reference may also encompass other matters, such as performance, disciplinary history, perceptions of attitude and integrity, punctuality and the reason for departure.

Any comments on suitability for a new role must always be – expressly – restricted to first-hand experience only. If the employee was dismissed, then this should be outlined accurately, as a favourable reference may weaken an employer's defence against an unfair dismissal claim. Maintaining consistency in providing references to different employees is vital to mitigate any allegations of discrimination or victimisation.

GENERAL DUTIES

When providing a reference, you (in reality, of course, your captain or head of department) must exercise reasonable care to ensure that the information provided is accurate and impartial, and does not create a false impression. There is no requirement for references to contain extensive details or be exhaustive in scope. Particular care must be taken when remarking on performance or sickness, as these could lead to a claim for disability discrimination.

Employers bear legal responsibility for the content of corporate references since they are provided on the employer's behalf. So it's advisable to establish a [policy] outlining who can provide references, and the permissible content. The legal implications remain the same whether the reference is given verbally or in writing.

NEGLIGENT MISSTATEMENT

A referee can face legal action for negligent misstatement if it provides an inaccurate reference. Essentially, employers providing references must exercise reasonable care in their preparation. Failure to do so could render the employer liable if the employee suffers harm due to the reference. In particular, opinions expressed in the reference must be supported by the facts.

DEFAMATION

A false statement that damages a person's reputation in the eyes of reasonable members of society could constitute defamation – either in the form of a libel (if written) or slander (if oral). As long as the employer believed the reference to be accurate, and provided without malice, the claim for defamation won’t get far. Referees should therefore substantiate their comments where possible, demonstrating their truthfulness or honest belief in their accuracy. Further protection can be provided by labelling references "Private and Confidential" and "for the addressee only".

MALICIOUS FALSEHOOD

An employee could also pursue a claim for malicious falsehood against a referee if he or she can demonstrate that the reference includes false statements published with malice (meaning the maker knew the statements were false or showed reckless disregard for their truth). While defamation safeguards reputation, malicious falsehood safeguards economic interests.

LIABILITY TO THE RECIPIENT

It’s easy to provide a polite, even glowing reference – especially in respect of a colleague and friend with whom the provider has spent many months together in the confines of a yacht. But risks can arise from an employer, especially through the agency of a captain or departmental head, providing an excessively positive reference. Previous employers automatically owe a duty of care to the recipient of the reference, to make sure that it is accurate. A well-worded disclaimer should be added just in case of any inaccuracies.

DATA PROTECTION

Providing a reference typically means handling personal data, and those involved must abide by the UK GDPR and the Data Protection Act 2018. Guidance for employers is provided in the (outdated, but still useful) Information Commissioner's Office (ICO) Employment Practices Code.

Helpfully, Part two of the Code provides recommendations for employers issuing references, including establishing and communicating a clear policy regarding who can provide corporate references and under what circumstances. The Code advises against providing confidential references about an employee unless their explicit consent is obtained. It is vital to maintain the security of references and securely dispose of them when an employee leaves the organization, unless retention is required by law.

DISCIPLINARY MATTERS

It’s always going to be a contentious area, but it’s clear from cases on the point that have reached court that employers should disclose a poor disciplinary record, and details of any ongoing disciplinary proceedings, or risk being liable for providing a misleading reference. Unresolved disciplinary issues should also be mentioned, as not to do so could mean providing an incomplete picture. Adding a disclaimer is advisable.

DISCLAIMERS

It's customary for employers to add a disclaimer of liability – often specifically in respect of any negligent misstatement. This is usually effective as far as liability to the recipient is concerned, and is well worth adding, but it must such a disclaimer wouldn't absolve liability for fraud or deceit, meaning the employer cannot knowingly or recklessly make false statements.

POLICIES

Finally, employers ought to establish a well-defined written reference policy, outlining

• Which individuals are authorised to provide references;

• How references may be provided (in particular whether oral references may be given);

• The permissible content; and

• Any prohibited content.

Having a template reference annexed to the policy is a useful further measure, and there should also be an obligation for records to be kept of oral references provided.