The Good, The Bad and the law of employment references
Be careful what you refer to
What is an employer’s duty when giving employment references?
Does the employer have to give a reference?
Can I be negative in a reference?
Is there a policy I can implement in my business in relation to employment references?
Can I just give a short statement of employment ?
These are just some of the questions we are asked when the subject of giving a reference for a former employee is discussed.
In this article we outline the Good and the Bad of employment references for employers in Ireland
Put it in a policy. Examine your company’s policies and procedures together with any employee manual. If there is not a reference to a policy on giving employment references, then you should obtain and implement one as soon as possible.
Decide who, within your business, deals with reference requests. Ensure that all management know who this is and that no one else should give a reference on behalf of the business.
Keep the reference within safe areas. Confirm the fact of employment, job title, what the employee’s duties and responsibilities were, and the dates of employment.
State that it is company policy to provide confirmation of the factual statement of employment only.
Stick to the facts. Avoid opinions.
Put a copy of the reference given on the former employee’s personnel file. You should also keep your own record of all references given, time, date and content.
Where work colleagues are asked for a reference, ensure that they mention clearly in the reference, that it is a personal reference only and does not constitute a reference on behalf of the business. This should be incorporated in your policy referred to above. Like with all policies it should be communicated to the relevant employees in an effective manner.
Getting personal. Avoid personal information, e.g. medical condition, political affiliation, trade union activity etc.
Sharing your opinions. Stick to the facts which can be proven. Your opinion may be wrong and damaging to your business. Remember an oral reference should be similar to a written one. Don’t ramble. Stick to the facts.
Giving random references. If you fail to follow the template laid out in your policy you are tempting fate. By giving a short reference to one employee and a long gushing reference to another, you may be setting yourself up to be sued.
The Law of employment references
The law affecting employment references is based on how it affects contract law other laws,and various pieces of employment legislation. There is no specific piece of legislation dealing exclusively with employment references.
Is there a legal obligation to give a work related reference?
In general, an employer is not under an obligation to give a reference. If it is standard practice in an industry to give a reference there may be an implied obligation to give a reference.
A duty of care to the employee
Where an employer decides to give a work reference, then the duty of care to the employee kicks in. If the reference contains false or misleading statements which causes the employee to incur financial loss, then they may be able to sue the employer. A future employer is owed a duty of care by the former employer if the latter provides a work reference.
A recent UK case Hinks v Sense Network (June 2018) gave useful indicators as to how an employer can successfully carry out its duty of care in the following manner:
To conduct an objective appraisal of facts and opinions about the employees
To ensure that any facts set out in the reference were true and any opinions were reasonably arrived at
If an opinion arises from an earlier investigation, to take reasonable care to see that there was a legitimate basis for the opinions
Interestingly enough, the case involved the giving of a comprehensive reference which included what the employee would regard as negative opinion. The court held that the statements made in the reference were more than amply supported. The employer won on this occasion because the reference was based on facts which could be proven.
There is an increasing practice among employers in Ireland of providing a simple statement of employment as outlined herein. This helps to avoid the consequences which may arise from a more detailed reference.
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