Giving Bad References Is against the Law Uk Le 18 octobre 2022
For this reason, those who provide references are well advised to include a disclaimer to protect against possible claims of negligence. For example: Failure to provide a reference without explanation can also mean that you have had problems with the employee. This could lead to allegations that you discriminated against them. You could also argue that you have broken the notion of mutual trust implicit in each employee`s employment contract. Instead of legislating, the position of references has evolved through case law. The principle that an arbitrator must make the statement truthfully, accurately and on reasonable grounds to accept it as such stems from Bartholomew v. London Borough of Hackney in 1999. Kidd v. Axa Equity and Law Life Assurance Society plc 2000, which followed shortly thereafter, confirmed that the reference did not need to be detailed or exhaustive.
But while that doesn`t stop previous employers from giving a « wrong » reference, you should always be careful when making assumptions or personal assessments of a person`s character. In other words, you should avoid making subjective or stubborn statements. A former employee could make a claim for negligence against a former employer if the information in the reference is false or inaccurate. To make these claims, the person would have to prove that a noticeable loss occurred in relation to the adverse impact on their employment prospects. In all cases, the refusal to provide a reference must be reasonable and may violate the Equality Act 2010 if the refusal was directly related to the former employee`s statement or information related to the procedure. This procedure could be a complaint alone or even the filing of an action before the Labour Court. « It protects the company from the former employee`s claims if you say something negative, » she explains, but adds that « you also don`t want to make a false positive recommendation. For example, if the ex-employee stole money and you praise the former employee`s reliability when talking to a potential new employer, you could find yourself on the receiving side of receiving a complaint from the new employer. « Referrals are a legal minefield for employers, as an error can potentially result in liability for negligence, discrimination, defamation or data breach. This explains why many employers only give basic factual references regarding employees, as this significantly limits their legal risk. As long as employers comply with their own internal policies and related case law, employee notices are so important that they can be used by companies as bargaining chips.
For example, in settlement negotiations, employers may agree on the wording of an appropriate referral as part of a compromise agreement. Those who are also subject to disciplinary proceedings will be concerned that the details of their misconduct will be disclosed to a potential employer once they are fired. This is legally permissible because the information is factually accurate, but could have serious consequences for the individual. You can make a data protection law or request to obtain this information either from the reference provider or from the recipient. More information can be found on the ICO website. However, this was complicated by a change in the law suggesting that referrals cannot be disclosed. However, if they provide a reference, they are required by law not to provide a false reference. For this reason, many employers only provide factual references that include name, job title, and dates of employment. They do this so as not to be held responsible for inaccurate and more detailed employment references. This means that you can include a disclaimer in your references as a « belt and suspenders » measure. Despite what many people think, labour law in most countries does not prevent employers from giving a « wrong » reference. As ACAS, the UK-based employment consultancy, explains, references simply need to be « fair and accurate thinking ».
By using centralized HR software, it can be easier for HR managers to provide factual and accurate information for reference requests. From a legal point of view, the rejection of a reference request is probably the safest way. ACAS policies state that there is no legal obligation to provide one, and according to attorney Dan Kalish, « a former employee will generally not have a claim against you if you refuse to provide a reference. » It is not entirely uncommon for a former employee to receive a bad reference from their former employer that contains false or false/inaccurate information. If you find yourself in this situation, you can try contacting your former employer to see if you can reach an agreement. Ask what will be included in future references they send and point out inaccuracies in the references they have provided so far and politely ask them not to return them. If your employer gives you a reference, they can make it as short as they want. Many references only say the title of your position and the date you worked there. Some regulators also say that employers must provide references, for example, the Financial Conduct Authority. If your former employer doesn`t want to give you a reference, you can ask them to give only a short one – known as a « basic reference ». For example, they can confirm when you worked for them and what your job title was. Many employers only provide basic references, so your new employer doesn`t think it`s unusual.
Employers are also required to follow their own contractual policies and therefore, if they have clauses on providing references, they must comply with them. Otherwise, employers risk receiving complaints of violations. From an employment perspective, the best advice would be to provide truthful and thoughtful references if your normal customs allow for references. Although in practice there is no obligation to provide a reference, most roles rely on it, and it is therefore unusual for companies to have general prohibitions from responding to reference requests. If you believe an employer has discriminated against you in a dismissal, you have the option of filing a complaint with the Labour Court. Under the Equality Act, you may also be able to file a complaint if your employer or former employer provided a wrong reference as victimisation because you committed a `protected act`. These include: (1) making a complaint under the Equality Act 2010; (2) witness statements or information in proceedings under the Equality Act 2010; (3) has done anything else for the purposes of or in relation to the Equality Act 2010 or (4) has alleged that your employer or former employer has breached the Equality Act. Can it be illegal to give a bad reference to an employee? Marcus Dilefice, a partner in JMW Solicitors` employment team, discusses what is and is not legally acceptable for employee referrals in accordance with case law and contractual policies. Avoid inconsistencies – provide a reference in one case and not another, or simply give a factual reference to one worker and a full reference to another – as this could lead to an accusation of discrimination by a disgruntled employee. It is best to establish a policy that determines whether or not you provide references and, if so, who can give them and what they should contain. If it is your policy to not provide references at all, respond to each referral request by specifically explaining that it is not your policy to give it to avoid misunderstandings. One option is to refuse to give references to an employee for political reasons – you don`t have to do so unless your employee`s employment contract explicitly states that you will.
But it`s embarrassing for your employees and ex-employees. The situation in terms of professional references is often misunderstood. Many people and companies feel that « wrong » references cannot be given in the UK. However, this is not true. Employers may provide adverse references if they believe that the information provided is true and accurate and that there are reasonable grounds to do so. When submitting a reference, the employer is required to be fair, truthful and accurate. However, it should be remembered that the donor of a referral has these obligations not only to the subject of the referral, but also to the person who requested the referral. The reference must therefore reflect reality and must not be too laudatory if it is not justified or too negative if it also gives a misleading impression. Marcus Difelice has been a partner in the JMW Employment team since 2020, having previously worked for Brabners LLP, Eversheds and Pinsents. He specializes in assisting employers defending claims in employment tribunals and administering employee rotation programs, particularly in the hospitality industry.