Can you say anything ‘useful’ in a reference?

In this instalment of our series uncovering some of the common myths and misconceptions in employment law and HR, we’re looking at whether you can say anything ‘useful’ in a reference.

First of all, any reference you give should be accurate and truthful – and you need to be able to prove that it is.

You can confirm an employee’s start date and end date, their job title and their rate of pay. You can explain why the employee left. If they were dismissed, you can explain why.

That includes if a grievance or complaint was submitted in relation to them. Did they leave before it could be dealt with? Or was it investigated, and an outcome reached? You can talk about all of this in a reference.

If the employee was under investigation for disciplinary, whether they left before it was concluded, or there was an outcome, you can say what happened. Were they issued with a warning? Dismissed?

Backing up what you say

The important thing is that you must be able to back up what you’re saying. So, if you claim that an employee had a disciplinary warning, then that must be recorded on their personnel file and they must be aware of it.

What not to include

We recommend that you avoid including the following in a reference:

• Details about an employee’s health or their sickness absence. This is sensitive personal data and needs to be handled carefully. Also, it may be connected with a disability – and you could find yourself facing a disability discrimination claim.
• Information indicating that an employee has raised health and safety concerns, been a whistle blower, asserted their legal rights, made an allegation of discrimination, or supported someone else who has done so. This is because you could be accused of subjecting the employee to a detriment for their actions – and face a claim of victimisation.

Finally, remember that a reference contains personal data. You may want to get consent from the employee before giving the reference.

This isn’t usually an issue as the employee has presumably given their prospective employer your details for just that reason. You don’t have to show the employee the draft reference before sending it out.

If you have any questions on this subject or would like some support on employment law and HR issues, please get in touch!