HR Alert: Fair and accurate references

At MDDUS, we are frequently asked by practices what their obligations as employers are in relation to giving out information about ex-employees in references.

Employers are not legally obliged to give a reference (unless stated in the contract) but if they do it should be done fairly and in good faith. In most cases, it would be appropriate for practices to provide a reference and the criteria and format should be applied consistently.

Practices should consider including the employee’s length and dates of service, positions held and key responsibilities. Employers should not ask for personal information and the reference should focus on the candidate’s performance in their previous job.

Prospective employers must only approach a job applicant’s current employers with the candidate’s permission.

Absence or disciplinary records do not need to be disclosed with the reference but practices should consider whether omitting information would result in an inaccurate and misleading reference. In a situation where a former employee posed a risk to patient safety then the practice should disclose the relevant information.

If any disciplinary matters are to be included in a reference, then the correct process would need to have been followed at the time to ensure that any formal warnings issued were done so legally and in compliance with the Acas code of practice.

Employees can request to see a copy of any reference and can attempt to claim damages in court if they believe that a reference is false or misleading. The worker must be able to show that the information was misleading or inaccurate and that they have suffered a loss such as withdrawal of a job offer.

Supplying references can be a difficult area so practices should contact the MDDUS employment law team if they want to discuss any specific aspect.