An employer is not legally required to provide a reference for a current or former member of staff. However, LSE has a policy of providing references and case law demonstrates that in doing so, an employer has certain obligations and can be held liable if it is proven that a reference is defamatory, negligent or deceitful.
The notes below offer guidance for managers when writing references and the steps to be taken when dealing with a reference request.
Please note: the following guidelines are to be used when providing a reference for a non-academic member of staff.
An employer is not legally required to provide a reference for a current or former member of staff. However, the LSE has a policy of providing references and case law demonstrates that in doing so, an employer has certain obligations and can be held liable if it is proven that a reference is defamatory, negligent or deceitful.
An employer can be sued for defamation if a reference contains a false statement that is damaging to the subject's reputation. The subject of the reference must be able to prove that the false information was given with malicious intention.
Referees owe a duty of care to former or current employees when giving a reference on their behalf and can be held liable for damages caused to employees by negligently prepared references. They must therefore ensure that all information provided is accurate, true and fair and that the reference does not give an unfair or misleading impression. (Spring v. Guardian Assurance)
If a reference were provided that attributed qualities to the subject which were untrue, an allegation of deceit could arise. An employer would have to show that the individual had been appointed on the basis of a reference, only to find that he/she was unsuitable in respect of a factor contained in the reference.
The LSE will normally be liable for references produced by members of staff unless it can be proved that the reference was supplied outside the course of employment. Therefore as a manager supplying a reference for a current or former member of staff, there is a duty of care to act reasonably and without liability to the School.
The LSE's insurance includes cover against claims arising from a reference written by a member of staff in the context of his/her employment at the School. Cover extends to indemnification of former employees for 12 months from the date that they leave. It does not cover references given by a current or ex-member of staff acting in a private capacity.
Where a reference is provided with a positive belief that the information contained in it is true and non-malicious, the author is protected by the law of Qualified Privilege. This means that the law would protect an employer who, in good faith, provides information that is believed to be true, to a prospective employer.
In cases where it can be demonstrated that a manager has not acted within these guidelines, the School reserves the right to take disciplinary action.
General principles for dealing with reference requests
In order to reduce the risk of liability the following guidelines should be complied with when producing a reference. These should be read in conjunction with the background document on references, which can be found on the Human Resources Division website.
Be factual. Ensure that all statements in a reference can be supported with objective details.
Ensure statements are made in good faith. A statement is not made in good faith if the referee knows it to be untrue or if they have made no effort to determine its truthfulness.
Be clear and unambiguous. Statements that are misleading or incomplete, yet still technically true can be defamatory.
Ensure references are fair both to the subject and the recipient. A reference is not fair if it gives an overall false impression of a candidate to a prospective employer, even if it does not contain defamatory statements. Any negative information, of which an (ex) employee has not been previously made aware, should not be included.
Include the following statement in the reference: This reference is provided in strict confidence and in good faith and is accurate to the best of our knowledge and belief. However, the information is given strictly without liability on the part of the University or the writer, for the purpose of assisting in the selection to the post of...and may be used only for that purpose. The reference may not be disclosed to third parties who are not involved in the selection process without written consent of the sender.
However note that in cases where action is taken for libel or negligence, this
clause would not protect the referee.
Ensure that the company requesting a reference has a legitimate business interest to do so. When a reference request is received where a referee has not been contacted previously, it is important to ensure that the request is legitimate by requesting that the company provides written authorisation from the individual concerned. This should always be provided before sensitive information is given (i.e. details of sickness absence).
Be mindful of the Rehabilitation of Offenders Act. Where a reference request asks about past criminal convictions, an employer must be careful to verify whether or not a conviction is spent. A belief that a conviction is spent when it is not and vice versa, could amount to a negligent misstatement. Further information regarding the rehabilitation periods should be sought from Human Resources.
If possible, consider showing a reference to the subject beforehand. An open approach has been recommended by the Data Protection Registrar in order to limit the risk of liability.
Send all completed references to Human Resources. Human Resources check all references before forwarding them to the relevant company.
Make it clear when a reference is provided in a personal capacity. In such a case, the reference should not be written on LSE headed paper, contain LSE compliments slips or bear the LSE stamp and should not contain any reference to the persons position at the LSE, i.e. job title. It should be made quite clear that the reference has been provided in a private capacity and the person requesting the reference should be in no doubt that this is the case.
Provide verbal references over the telephone. It is possible that information given over the telephone may be distorted according to a different understanding of what is being said. Where references are requested over the telephone, the caller should be asked to provide the request in writing. In certain circumstances (i.e. a reference is requested at short notice and non-reply would impede a candidate's chances), the caller should be referred to Human Resources.
Supply detailed references for certain candidates, whilst only supplying generic information for others. While it is harder to be held liable for what has not been said, action can be taken if there is inconsistency in procedures, which leads to certain (ex) members of staff to feel discriminated against.
Refuse to supply references. A refusal to supply a reference can imply a negative reference. When unable or unwilling to provide a reference, this should be communicated very carefully to the requesting company in order to avoid giving the impression of a negative reference.