Is an employer under any obligation to provide a reference for a former employee upon their request?
Generally, an employer is under no duty to provide a reference to a former employee. However, an employee’s contract may state that the employer will provide them with a reference upon request. In such circumstances, the employer would have an express obligation to provide the former employee with a reference. Even if the employee’s contract is silent with regard to references, if the employer’s standard practice is that references are provided, this may constitute an implied contractual term through custom and practice. This would mean that the employer will have an implied obligation to provide the former employee with a reference and a failure to do so may constitute a breach of contract.
Following Kidd v Kidd v Axa Equity & Law Life Assurance Society Plc , if an employer decides to provide a reference, it has a duty to do so in an accurate, fair and truthful manner. An employer must conduct an objective and factual observation of the employee’s time at the company to ensure the reference is accurate and not misleading.
If an employer refuses to provide a reference or provides a discriminatory reference because of a protected characteristic of the worker e.g. sexual orientation, race, disability, it could face a potential claim for direct discrimination and/or victimisation.
In order to avoid potential litigation in this area it is advised that employers give only brief and factual references. It is worth seeking legal guidance when these cases arise as each case will be fact sensitive.
It is also important to consider that the GDPR and Data Protection Act 2018 will apply to personal information contained within a reference. An employer must ensure that it has a lawful basis for processing this personal data and such information should be set out in a privacy notice. In this instance, because the former employee is requesting the reference, there should not be any adverse data protection consequences for the employer. However, it would still be prudent to ensure that the employee’s reference request is documented.