An employment reference can take a number of forms; it can be a once-off letter written when the worker leaves, a phone-call or email to a prospective employer or a form designed by the prospective employer seeking the responses of the former employer. Regardless of the format, employers are advised to proceed with some degree of caution.
There is generally no legal obligation to provide a reference to a worker who leaves their employment, meaning an employee is not entitled to a reference even if it is a condition of commencing a new role. However, if a contract of employment or any written promise to provide a reference is given to the employee, then that will be binding on the employer. It would also be inappropriate to decline a reference for a particular employee in circumstances where there has been a practice of providing same to others.
Where a reference is given, care must be taken to be honest, accurate and non-discriminatory. Care should be taken not to mention whether a person’s health or family status impacted their duties or attendance. It could be deemed in breach of equality legislation to mention absence from work when the employee was on certified sick leave.
Care must be taken not to defame the employee, by making a statement that is untrue or a negative comment that cannot be proven by the employees HR record. This is a particular concern if the employee left in fraught circumstances.
Conversely, the reference is an assurance to the potential employer, and an inflated estimation of the employee’s abilities and skills may amount to an actionable misrepresentation if the employee turns out to lack skills mentioned.
To avoid the above issues, some workplaces provide only a statement of employment stating the duration of employment and duties; but this is not satisfactory for more senior or professional employees who often require a substantial reference in order to satisfy potential employers.
The above is provided for information purposes and is not intended as legal advice. If you have any questions on dealing with a request for a reference, we, at Fitzsimons Redmond, would be happy to advise you on your next steps. Please contact us on 01-676 3257.
By Lisa Quinn O’Flaherty
Solicitor at Fitzsimons Redmond