For the most part, employers have no legal obligation to provide a reference and are entitled to refuse.
There are some exceptions to that rule. People working in the finance sector must provide a reference and people working in an environment where there are children or vulnerable adults must also provide a reference. In those circumstances the reference must come from their previous employer.
If you decide to provide a reference you have a duty of care to ensure the information in the reference is true, accurate and fair. Specifically, it must not contain misleading information, whether it is to the advantage of the individual or to their detriment. If you provide a misleading reference it could lead to a claim for misstatement or misrepresentation.
Any reference you provide should be limited to your specific knowledge of the individual and you should not speculate as to the person’s suitability for a new role.
Some employers request references prior to interviewing an individual for a job, sometimes to help with shortlisting. S60 of the Equality Act 2010 precludes asking an individual about their health before making a job offer. S60 was designed to help prevent employers discriminating against people with disabilities. You can ask after you have made a job offer, but a job offer may constitute a contract so if you withdraw the offer you may be in breach of contract and have to justify the withdrawal – so take care that your grounds do not represent disability discrimination.
If you are asked to provide a reference which includes a question about the individual’s health or even attendance at work which could be related to health, you should first make sure that a job offer has been made. It is safest not to include such information in a reference.
If you are the prospective employer, don’t ask about health during the selection process. However if the job involves climbing a ladder or lifting boxes for example, you may ask if the candidate is able to undertake these activities, you might even include a test of ability as part of your selection process.
Confidential references are exempt from the provisions of the Data Protection Act 2018 which means that if the individual makes a Subject Access Request to see data held by an employer, confidential references can be excluded. Make sure your written references are clearly marked ‘Confidential’. However, notes taken by a prospective employer during the course of a telephone reference might be disclosed as part of a Subject Access Request so don’t assume that a telephone conversation is a safe means of making subjective comments or unwise statements.
Job applicants can and do request access to notes taken during a selection process and they are entitled to do so. Take care with your interview notes and don’t allude to any references already received.
For absolute transparency, it is good practice to provide the subject with a copy of the reference you are going to provide.
To err on the side of caution, avoid commenting on the subject’s sickness absence record and keep resolutely to the facts – length of service and job role. For example “Jo Bloggs joined the company on 1st May 2017 as a clerical assistant. He left on 31st January 2022 as a result of redundancy“.
If you are recruiting, you should always request references from the subject’s last employer. You could include the question “would you re-employ?”. Never, ever accept references from family and friends!
Need help? You can contact me on 07766 167160 or at email@example.com