Writing references? Choose your words carefully

Most employers will be asked for a reference by their employees at some point – some under good circumstances and some in perhaps less positive situations. Whatever you decide to include in an employee reference, you need to choose your words very carefully. Get things wrong and you could find yourself facing legal action. Here are some important points to note:

You can say no

In general, employers are not legally obliged to give someone a reference if they don’t wish to do so, except in certain circumstances. For example, where the employee’s contract states that the employer will provide a reference, or if they are required to give a ‘regulatory reference’ for certain roles regulated by the Financial Services Authority. So, if you fall outside these exceptions, it’s your call as to whether or not you provide one. However, it’s generally advisable to give a reference if you can. Refusing all references or providing them for some employees but not others could prove to be problematic.

You can give a basic or a full reference

If the type of reference is laid out in the employment contract, you’ll obviously need to abide by that. Otherwise, you can choose to give a short reference or a longer character reference. A basic reference can merely confirm that the person worked for you between certain dates and provide the  simple details of their role, salary, benefits etc.

A longer ‘character reference’ can go into more detail about the person’s responsibilities, achievements, skills and relevant personal qualities. This is the type of reference where employers can sometimes stray into risky territory in terms of fairness and discrimination, so tread carefully.

It must be true, accurate and fair

It’s important to choose your words judiciously. This can be a particularly tricky area for employers writing a reference for an employee who may have had problems with their work or an acrimonious departure. You have to put personal feelings aside and stick to the objective facts. If an employee was disciplined, had a consistently poor performance or clocked in late every day, you can say that - but you need to base your opinion on solid evidence. If the employee decides to challenge your reference, you must be able to demonstrate that your appraisal is true, fair and accurate. If you embellish, mislead, exclude relevant information or can’t back up what you say with the facts, you could find yourself in some legal hot water.

Be wary of discrimination

Commenting on the protected characteristics of the employee is in breach of the Equality Act 2010. That means you cannot include anything related to their age, disability, gender reassignment, marriage, civil partnership, pregnancy, maternity, race, religion, beliefs, sex or sexual orientation. However, it should be noted that there are certain exceptions, for example where a certain protected characteristic is an ‘occupational requirement’ for the role, e.g. someone needing to be of a certain religion to take up a particular position within a religious organisation.

While there are the occasional examples of blatant discrimination, inadvertent discrimination is something all employers need to be wary of. If you’re at all unsure whether the wording of a reference may be construed as discriminatory, seek expert advice or you may find yourself facing an employment tribunal.

Employment law advice you can trust

As with any employment document, it’s very important to get things right. A few badly chosen words on a reference could leave your company be liable to pay compensation, even if your mistake was inadvertent. Having a professional employment lawyer give things the once over is a sensible way to ensure you stay on the right side of the law.

At Rowberry Morris, our highly experienced employment lawyers provide both ad hoc legal advice and offer an employment law retainer service to local businesses. If you need help to ensure your references, contracts, policies and procedures are up to par, get in touch with our nearest branch.

  • Reading: 01189 585 611
  • Richmond: 01784 457 655
  • Staines: 01784 457 655
  • Tadley: 01189 812 992

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.