Providing references for ex-employees can sometimes present a quandary to employers.

The drain on time and resource can be a challenge, especially when married to the conflicting expectations of what information should be included in a reference and whether providing the reference could pose a risk.

Here we look at the impact of a recent case and what business owners need to bear in mind when choosing to provide a reference.

What does the law say on providing references?

There is no legal obligation for an employer to give an employee a work reference unless there is a prior agreement to do so, or they work in a sector that is regulated – for example, the financial services industry.

However, if an employer does choose to offer a reference they need to ensure the information given is fair and accurate. If not, the employee can challenge a reference in court if they believe the information is incorrect or misleading.

When references go rogue – how to keep the information fair and accurate

In a recent case against Citizens Advice Merton & Lambeth the tribunal found a man had been discriminated against after the former employer made comments linked to the claimant’s sickness absence in a reference.

Mr Mefful claimed he suffered victimisation and disability discrimination after his former employer – where he had worked from 2004 until being made redundant in 2012 – gave him a reference that lost him a job offer.

The tribunal noted that:

“[the reference] failed to provide any favourable information about [Mefful] personally or about his performance… This amounted to a detriment and it created what appeared to be an entirely false and misleading impression of his successful eight-year career.”

Mr Meffel did have a record of sickness absence, however this record was described by the tribunal as ‘overestimated to a substantial degree’.

How employers can prevent discrimination in references

With cases like the one above fresh off the tribunal presses, employers are being urged to take extra care with their references to ensure they do not provide information that could be considered discriminatory.

So when do employers have to give references, and what form can it take?

Employers must give a reference if there was a written agreement to do so, oR they’re in a regulated industry, like financial services.

And if they give a reference it must be fair and accurate, but can include details about worker’s performance and if they were sacked. It can be brief – such as a statement giving the worker’s job title, salary and when they were employed.

References, discrimination and unfair dismissal

Workers might also claim damages from a court if the employment contract says they must be given a reference but the employer refuses, or when the worker is sacked because they’ve asked for a reference while still working for their employer.

Stephen Johnson is an HR Policy Consultant at Moorepay.