References - Pitfalls for Employers and Employees
There have been a number of recent claims of discrimination and victimisation by employees arising from the failure to give a reference by an employer.
The following points give practical guidance to employers and employees in this situation.
• Both an employer and employee should establish whether an employee is entitled to a reference, review the contract, staff handbook and any verbal agreements, regulations in the industry and custom and practice.
• There may be an implied term to provide a reference due to the nature of the industry and whether a reference is required to continue in employment for example the UK insurance industry.
• An employer should consider whether it has a moral duty to give a reference to an employee as it may be difficult for an employee to get another job without one.
• If providing a reference an employer should ensure that it is true, honest and not misleading. It should be prepared by a member of staff who obtains full knowledge of the employee, from their former Supervisors and Human Resources Department. Particular care should be taken when the employer and employee have been in litigation in relation to discrimination, or any other issues.
• An employee may pursue a complaint of discrimination and/or victimisation against an employer for refusing to give an adequate reference.
• If an employer fails to provide a fair and reasonable reference for the employee, while the employee is employed, the employee could resign and claim constructive dismissal.
• An employer should not comment on alleged misconduct or poor performance etc. unless a proper investigation has taken place and these complaints have been substantiated.
• References should be marked “private and confidential” and a disclaimer should be considered where the reference is going to a new employer.
• Keep written records particularly in situations where the employee has litigated against the employer.
• Both the employee and the employer could consider discussing the reference, particularly where the employee has no option but to mention information that could be viewed poorly by a potential employer. The employee could then seek another referee.
• Both the employee and employer should be aware that an employee can request a copy of references provided to third parties unless the reference is given in confidence or on the understanding that it would be treated as confidential under the Data Protection Acts 1998 to 2003.
• The Data Protection Commissioner will look very closely where confidentiality is claimed by an employer over a reference given about an employee, the data and context and must be satisfied the information would not have been given otherwise.
• Both employee and employer should consider incorporating a reference into any Compromise Agreement and both should be aware that an employee can bring a claim for negligence and/or defamation where references have been prepared negligently or produced with malice.
Davnet O’Driscoll is an Associate in the Employment Department. This is a broad statement of the law. For advice specifically tailored to individual situations, please contact dodriscoll@hayes-solicitors.ie