A referee has a duty of care to disclose only information relevant to the post for which the candidate has applied.
The aims of the reference are:
to confirm facts
to confirm the accuracy of statements made in an application
to provide an opinion on suitability based on past performance
When drafting a reference, rules to follow are:
It is fair & accurate
There is nothing misleading in the reference
the factual basis for every statement, is believed to be true after reasonable investigation.
Content of a Reference
As a general guide, the reference may contain:
the dates on which the individual’s employment began & ended
the job title
a short description of the duties & responsibility
Details of any responsibility for staff, money, equipment, computer operations etc or anything similar
the reason for the termination, i.e. whether he or she resigned or if there was a termination, and if the latter, whether this was the result of dismissal, redundancy, retirement or the expiry of a fixed term contract.
Special care needs to be taken when considering the inclusion of the following in a reference:
Statements in a reference should not refer to complaints or difficulties that were never raised with the employee concerned. It is however acceptable to detail factual concerns or problems with evidence, as long as the employee was aware of these concerns & they had been previously discussed with them.
Pending investigations where no disciplinary decision was taken should not be referred to in writing. There may be exceptions, for example, if the alleged disciplinary offence is one of gross misconduct & could affect the employee’s suitability for the job.
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 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 responding, the written consent of the individual should be sought.
No referee should provide a favourable 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 dismissal from the reference information may render the Company liable to breach of their duty not to be unfair or misleading to the recipient.
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