To Reference or Not To Reference?

The recent case of Hincks v Sense Networks LTD involved an employee who argued that negative references must be based on an employer’s reasonable investigation.While Sense Networks prevailed in the case since there were no signs of procedural unfairness, the case now places a higher burden of proof and significant duties on employers.

Whether employers offer a positive or negative reference for an unsatisfactory employee, the points and warnings related to the Hincks v Sense Networks case are highly relevant for all employers. Since there is no general duty to provide an employee with a reference the question moving forward becomes ‘Should we be providing any references at all?’

In deciding to offer a reference employers have two options: a factual reference or a more detailed reference. Should employers choose to offer a detailed reference it is advisable to give only opinions or information (negative or positive) that can be easily corroborated with evidence.

If you believe there is a reason to mention allegations or issues you must clearly explain whether these are proven or merely investigated. Failure to do so would be a breach of care.

Similarly, anything an employee is not aware of should not be raised or mentioned since “the employee has not been asked to answer these allegations or explain their actions”.

Likewise, refusing to provide a reference is not a way out and is also subject to risk. You might easily walk into a liability for breach of contract and constructive dismissal.

DLP OFFERS THE FOLLOWING GUIDANCE

• Do you have the correct consent to answer the reference under GDPR rules?
• Do you have a contractual obligation (i.e. – an employment contract, COT3, or settlement agreement)?
• Is there a regulatory duty such as the CQC or financial regulatory authority?
• Finally, ensure consistency. Any ‘no reference policy’ must be in place for all employees not just at your discretion.

You may also want to seek guidance for high sickness absences, disabilities, defamation and live tribunal claims.

Should you have any questions feel free to reach out to our help line. DLP advisors are available to answer any questions you may have at 0330 400 4495.