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References for Ex-employees: An Employers’ Guide to Avoiding Liability

Drafting references can be a legal minefield for employers. This has not been helped by recent confusion over whether ex-employees are protected against victimisation if they receive a negative assessment. Generally, there is no legal obligation on an employer to provide a reference for an ex-employee. An employer’s policy on whether or not to give a reference needs to be consistent: a decision to provide a reference to some but not all ex-employees could be discriminatory under the Equality Act 2010 (the Act) if this is linked to protected characteristics. Where an employer does provide a reference it has a duty of care to the ex-employee and must take reasonable care in the preparation of the reference, which must be true, accurate and fair and not give a misleading impression. While the reference does not have to be comprehensive, it must not be misleading through omission. An employer may be liable for negligent misstatement where its reference gives an inaccurate impression and in extreme cases it may also be liable in the tort of deceit. Employers would be well advised not to refuse to give a reference just because the employee has made allegations, brought proceedings (or given evidence in connection with such proceedings) under the Act.

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