References for ex-employees: an employers' guide to avoiding liability
Drafting references can be a legal minefield for employers. This has not been helped by recent confusion over whether ex-employees are protected against victimisation if they receive a negative assessment.
Generally there is no legal obligation on an employer to provide a reference for an ex-employee. This is subject to regulatory requirements in certain sectors such as financial services and where the parties have entered into an agreement (such as a compromise agreement) under which they have contractually agreed a reference.
An employer’s policy on whether or not to give a reference needs to be consistent: a decision to provide a reference to some but not all ex-employees could be discriminatory under the Equality Act 2010 (the Act) if this is linked to protected characteristics. Where an employer does provide a reference it has a duty of care to the ex-employee and must take reasonable care in the preparation of the reference which must be true, accurate and fair and not give a misleading impression…
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