References: Top tips for limiting your liability and writing an effective policy

by | Nov 4, 2019 | Blog

Writing references may sound like a simple task, and generally speaking, it is. But it’s worth taking precautions to limit your liability.

Here we’ll go through some key considerations when writing corporate references and tips for creating a policy.

Should I give a reference?

Are you under legal obligation to provide a reference? If so, you have no choice. But in most cases, it’s your decision. You’re completely within your rights to not provide a reference, although this is only advisable when the individual in question is not one you wish to recommend.

Distinguish between corporate and personal references. The former is a reference carried out by an individual on behalf of the employer. You should make it clear in your policy who can give this type of reference.

Personal references, on the other hand, do not incur liability for the employer. Procedure for giving personal references should also be included in your policy. When your staff give a personal reference, they should make it clear that any opinions are their own and do not reflect the views of your company.

As always, consent is extremely important. Before an employee leaves your organisation, make sure you ask them if they’re happy to give you permission to provide a reference on requested. It seems like an obvious question but having that permission in writing is an invaluable safety blanket.

The 3 types of reference

1. Oral references

We don’t recommend you give references over the phone. It’s a little too easy to misinterpret and once you’ve said it there’s no going back, so you’re best off avoiding this if possible.

2. Short factual reference

This is all that many employers will expect to receive from you; short and non-committal statements.

But be aware of the impression that a short reference may give.

The old saying, “if you have nothing nice to say, don’t say anything at all” applies here. If you aren’t keen to recommend an employee, a simple job title and dates of employment will be enough for the employer to know what you’re trying to say.

If you want to limit your liability as much as possible, it’s worth stating somewhere in your policy that you only give short references. If you explain this to the new employer, it will prevent your brevity from being misinterpreted.

In short, if the reference is accurate, fair and won’t be misinterpreted, you’re good to go.

3. Detailed reference

You may want to extend beyond the basic and talk a little bit about the employee’s suitability for the role they’re applying for.

It’s fine to do this, but we recommend avoiding opinions, especially when you can’t support these opinions with evidence. Keep to the facts.

Before you send the reference, read it back to yourself and judge the overall impression you make. Is it fair? Would you be comfortable with the person in question reading it? These are good questions to ask yourself before sending it off.

A few key things to keep in mind when writing a reference

1. Avoid referring to the employee’s misconduct unless you’ve carried out a formal investigation.

If you mention allegations that haven’t been investigated, you must make it clear to the employer that they haven’t been looked into. You’ll be breaching your duty of care if you don’t.

If you feel you need to mention something like this, make it very clear that they are unaware and have not had the chance to explain themselves.

2. It’s not a good idea to include anything which the employee is unaware of.

For example a customer complaint. Ask yourself if the individual would be surprised by anything you have written before sending the reference to the new employer.

3. Be careful with language.

With so little to go off, employers will tend to form judgements from subtleties, so consider any nuances in your language and how they may be interpreted.

4. Remember to add a disclaimer.

Protect yourself from any claims stemming from inaccurate information by making it clear that your reference is in good faith and on the basis of known info.

5. This is a big one: Keep in mind data protection when responding to requests.

Employers may ask you for information on an employee’s absence record or performance but to provide these records wouldn’t be a good idea. Giving a number of absent days without reason would suffice.

Be sure to include in your policy that those with permission to give references have the employee’s consent.

Anything related to sickness or disability is sensitive personal data and has the potential to act to the employee’s detriment if revealed.

Though, it’s worth noting that if the employee were to bring this claim to you, they would need to prove that the reference was the reason for them not getting the job.

6. Giving reasons for termination of employment

Employers will usually ask for a reason why an employee left your employment. If you choose to give a reason, make sure it’s consistent with the reality of the situation. In some cases, it might be wise not to give one.

Like with everything when writing a reference, it’s all about balancing duties between the employee and employer.

7. It’s worth remembering that the employee is entitled to ask for a copy of a reference via a subject access request.

If you’re happy that the reference is fair, true and accurate this won’t be a problem, though it may act as a good test to imagine the employee in question reading your reference. If you would be comfortable with them reading it, you’re good to go.

Key Takeaway

Have a references policy.

When it comes to writing references, consistency is key. This means a clear policy outlining your organisation’s approach to writing references is a must.

Do you want to play it safe and provide only short, factual references, or do you want more flexibility to give your opinions on the individual’s suitability for the role?

Whichever you decide, it must be laid out in your policy.

You’ll also want to state who can give references and in what circumstances. Determine which people are authorised to give corporate references. You may want to do this by grade or simply include a list of individuals.

You’ll then want to provide training for those who will be responsible for writing references, as it’s vital that they understand the legalities, best practice and potential pitfalls.

If you require further assistance to write the perfect reference, Get in touch!