M H writes: A former employee has asked me for a reference for his new job. What is the correct procedure?

In most cases there is no legal obligation on an employer to provide a reference, whether this is requested by the employee who is leaving the business, or by a prospective new employer, writes Peter Done, managing director of Peninsula.

Where an employer provides a reference there is a duty of care towards the intended recipient and the former employee. If the employer gives a negligent reference that fails to mention that the employee was incompetent, the recipient will be able to sue the employer if he or she suffers loss as a result. Care must be taken not to be unduly selective about what is included in the reference.

This should not deter employers from giving or requesting references. But do not say anything that cannot be supported by evidence.

It is also important to note that, according to the Court of Appeal, if an employer has a genuine belief, based on an adequate investigation, that an employee has been guilty, say, of theft, he is entitled to state in a reference that the employee was facing dismissal over allegations of theft at the time he or she resigned.

The Data Protection Act 1998 governs employees’ rights to be given a copy of their reference. If you receive a reference marked “in confidence” you must consider whether the information is confidential. If in doubt, contact the provider of the reference. If they confirm it is confidential, you should not disclose it to the employee.

Employers must avoid any unlawful discrimination in deciding whether to provide (or to ask for) a reference. Employers may receive reference requests even after an employee has retired, and they should deal with them in the same way as any other such request.

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