A referee has a duty of care to disclose only information relevant to the post for which the candidate has applied, when writing a reference for a previous employee.
As a general guide, the written reference may contain:
Under Section 61 of the Equality Act, information about a member of staff’s health (e.g. sick days absence) can only be provided once a job offer has been made. Information concerning an individual’s physical or mental health is also ‘sensitive personal data’ under the Data Protection legislation and should not be disclosed when writing a reference, unless the individual has expressly consented to the disclosure of this information.
The referee should discuss the response to any question about health with the member of staff to ensure the response is accurate, factual and creates an overall fair impression.
A referee is not required to disclose a ‘spent’ or current conviction of an existing or former member of staff and it is likely that a prospective employer will carry out their own checks. However, where certain posts are exempt from the Rehabilitation of Offenders Act (1974), a referee may be asked to respond to a direct question and an incorrect response could amount to negligence. Therefore before writing a reference or responding, the written consent of the individual should be sought.
No referee should provide a favourable written reference for a member of staff dismissed on the grounds of unsatisfactory performance. Should the dismissal be challenged, the favourable reference may be irreconcilable with the dismissal reason.
Omitting information on a dismissal from the written reference, may render the Company liable to breach of their duty not to be unfair or misleading to the recipient
There are many things to consider when you are asked to write a reference for someone.
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