- First and foremost the reference must be a fair and accurate reflection of the individual’s employment with the employer. Therefore all information contained in the reference must be objective and any opinions given must be based on fact.
- References should only be given once the employee’s manager and supervisors have been questioned and the employee’s file has been examined. Conjecture or the opinions of those not directly in contact with the employee during their employment should not be included.
- Employees must have been aware during their employment of the performance appraisal system in operation. Inclusion of concerns about an employee’s performance should never be included in a reference unless these concerns were made clear to the employee during their employment. This also applies to any disciplinary and medical issues.
- Try avoiding responding to any questions about the employee’s disciplinary record and medical history. While the basic fact of disciplinary issues and/or medical absences can be confirmed, no mention should be made of the details of these issues.
- Avoid all mention of sensitive personal information such as any of the nine discrimination grounds (i.e. race, gender, disability, age, family status, marital/civil status, religion, sexual orientation, membership of the Travelling community). While a reference to any such issues may have been innocent and in no way intended to be discriminatory it could be the case that a potential employer would not award a position on this basis. As a result the previous employer could be held jointly liable for facilitating this discrimination.
- Preferably references should not be given out over the phone were questions such as, “would you rehire this person?” cannot be avoided.
- It should be remembered that an employee can request a copy of a reference through Data Protection legislation. In order to protect themselves employers should ensure references deal only with fact and avoid providing any potentially libellous opinions.
- Finally, the employer should have a reference policy in their employee handbook and all employees should be aware of its existence.
Employers have largely up until this point battled with the ‘should we, should we not’ issue surrounding whether they are legally obliged or otherwise to provide past or indeed current employees with employment references, and if so what they are/are not obliged to include. Now it seems that even if an employer on the surface feels as though they have fully obliged the employee by providing what they deem a positive employment reference, additional caution now must be exercised surrounding the accuracy of the detail provided as they could unwittingly be leaving themselves open to a claim.
It is the case of HSE v A Worker (LC – AD1248) that provides key consideration in this area as in this case the Labour Court ruled that an employee be awarded €10,000 and given a permanent position due to the distress and delay caused by a reference which was deemed to have contained ‘inaccurate and incorrect information’. The employer in this instance maintained that it acted in good faith. Notwithstanding this, it was found that the employer failed to be pro-active in rectifying the reference inaccuracies when pointed out to them. This inaccurate reference subsequently jeopardised the employees opportunity for a permanent position which she had been offered pending satisfactory references
Remember that it is a key consideration that an employer has an obligation to exercise a duty of care to both the ex-employee and the potential employer in providing a truthful and accurate reference. Bearing this in mind, it is worth noting the key Dos and Don’ts to limit any potential risks that could arise:
