Employers’ guide: providing a reference in Cardiff

Providing references for former employees can feel routine, but get it wrong, and your business could face legal claims or reputational damage. Employers have a legal duty to ensure references are accurate, fair, and not misleading. Whether you’re a small business owner, HR manager, or senior leader, understanding your obligations when giving a reference is essential to protect your organisation. This article explains when you’re legally required to provide a reference, what you should (and shouldn’t) include, and how to reduce legal risks when responding to reference requests. You’ll come away with practical steps to handle references confidently and compliantly.

If you’re unsure about your reference policies or need expert advice on a tricky situation, our employment law solicitors are here to help.

Is there a general duty on the employer to provide a reference for an employee? No. There is no general duty on an employer to provide a reference for an employee or former employee, but there are exceptions when there is a duty to provide a reference.

When is there a duty to provide a reference? There is a duty to provide a reference:

• If there is an express term in a contract that a reference will be given.
• If there is an implied term in a contract that a reference will be given.
• If there is an obligation to provide a reference set out in an applicable regulatory body for your organisation.

What is best practice when providing a reference? It is best practice for your organisation to have a clear written policy setting out:

• Whom in your organisation is authorised to provide a reference
• What can and should be included in a reference
• What should not be included in a reference
• A template reference which sets out the language to be used, to ensure consistency of wording used every time a reference is given
• Whether an oral reference can be given and that where it can, that this is consistent with any written reference
• Whether there is any vetting/checking process on the proposed reference and if so, how that is carried out

Can employers refuse to give a reference for an employee? Yes. Unless you have a contractual or regulatory obligation to do so, you can refuse to give a reference, but should consider the following:

• Does your organisation’s policy state circumstances under which you can refuse to give a reference?
• Do the circumstances you are refusing to give the reference fit completely with the exceptions on providing a reference in your organisation's policy?
• Could the refusal to give a reference be based on a discriminatory reason?
• Have you kept a written, dated record of the reasons why you have declined to provide a reference?

If you do not have a written policy, then you still have an obligation to consider how you have dealt with requests for references in the past, whether the reasons why you do not wish to provide a reference are consistent with the reasons you have refused previously, and that they are not discriminatory.

What are the legal requirements if you do provide a reference? A reference must be truthful, accurate, fair and must not give a misleading impression. Here are a couple of examples:

• You have an employee who was habitually late for work (and you took no disciplinary action) but their work when they arrived was good. Stating in a reference that the individual always produced good work would be both truthful and misleading.
• You have a high-flying employee who was out-performing all other colleagues and you simply describe their work as satisfactory. It would be true that the employee’s work was satisfactory, but it would be unfair to the employee not to highlight the fact that the employee was a high performer.

Do you have to give a comprehensive or detailed reference? No. The legal obligation is to give a reference which is truthful, accurate, fair and not misleading. This does not mean that you must give a detailed or comprehensive reference. A more detailed reference is likely to include information about:

• Job performance
• Disciplinary record
• Time-keeping
• Absence record
• Reason for leaving

What is the potential liability for the employer in giving a reference? There are potential areas of liability regarding the giving of references. Most references are stated to be given on behalf of the employer or former employer. If, however, during a verbal reference it is not made clear that an individual is giving the reference on behalf of the employer, it is possible for that individual to be held personally responsible for the contents.

Are there any Data Protection Act issues when giving a reference? Yes. When your organisation provides a reference, it will generally process personal data. You should be particularly aware of data protection requirements when providing information in a reference about an employee's sick record or reasons for periods of absence.

How do you deal with outstanding disciplinary matters in a reference? It can be tricky to know what to say when you are being asked to give a reference for an employee against whom the disciplinary process has started, but not concluded. In this situation, it is important that you go back to your core legal requirement. You must give a true, accurate and not misleading statement.

Practical tips on providing a reference So, now you are aware of the key elements when providing a reference, here are our practical tips:

• The reference is provided in accordance with your organisation’s reference policy or past practices.
• The reference does not contain inaccurate statements.
• The reference provides a balanced overview of the individual.
• The overall picture the reference gives is not misleading.
• The individual is aware of any complaints or performance concerns that are referred to in the reference.
• Any comments about performance or absence do not give rise to a claim for disability discrimination under the Equality Act 2010.

If you’d like help reviewing your reference policies or want guidance on handling a sensitive reference request, our approachable employment law solicitors are here to support you. Contact us today for practical advice tailored to your business.