Weekly dilemma: References for poor former employees

I have received a reference request from an employee I was pleased to get rid of. Do I have to give a reference, and can it be negative? Would she be entitled to see it?

Unless both you and the prospective employer are regulated by the Financial Services Authority, you are under no obligation to provide your former employee with a reference. However, the denial of a reference is usually fatal to a job application, and so unless this is your express intention and you are prepared to take the risks which go with this (see below) then you should always be prepared to say something about an ex-employee, however anodyne.

You owe a duty to both the individual and the prospective employer not to compile the reference maliciously or negligently, and thereby give an impression which is either too negative or misleadingly positive. The individual could bring a claim for lost earnings if she can show that it was your reference (as opposed to, say, her own lack of skills or woeful interview performance) which costs her the job. The prospective employer can claim for wasted recruitment costs, and suchlike, if it can show that without your misleadingly positive reference it would not have hired your former employee.

As a general rule, you can say what you like in a reference so long as it is true. If the individual was a poor performer or a serial irritant for any other reason, and you can prove it if challenged, then you can say so with impunity. If this prevents your former employee from getting her next job then, at least in law, this is not your problem. However, there are two important reasons for not doing this.

First, if you cost the former employee her next job, she is much more likely to revisit the circumstances of her leaving her employment with you, whereas if she had obtained an alternative income and other things to think about, she may not have done so. Perhaps she might allege unfair dismissal, or claim some form of pre-termination discrimination or whistleblowing detriment. Quite aside from its being the decent thing to do, it is unquestionably in your best interests to get your dismissed poor performers into alternative positions as soon as possible, especially if that is with the competition!

Second, you need to avoid any suggestion that the poor reference itself constitutes discrimination or victimisation. If you would normally be prepared to sweep poor performance under the carpet of a noncommittal reference, but in this case choose to provide the gory details, the key question will be why you have done so on this occasion. If this particular employee made a previous discrimination complaint or a public interest disclosure, then a successful victimisation claim is likely, especially if you mention this in the reference. Similarly, if you normally whitewash men’s poor performance, the fact that she is technically no longer employed by you when the reference is given will not prevent a discrimination claim.

Your former employee will be able in time to get hold of the reference you write. While you and the recipient employer can hide for a while behind obligations of confidentiality and/or under the Data Protection Act, this could simply wind the employee up into believing that the reference was far more incriminating than may actually be the case. If the individual brings a claim, both these defences will ultimately be superseded by court or tribunal disclosure obligations in any case. In practical terms, therefore, you should always assume that the subject will ultimately get to see any reference you write. Though obviously harder to prove, the same is true in principle of references given orally. In all the circumstances, a Spartan reference stating that “the individual worked for us from A to B as C” plus a refusal to comment further, is much the safest option, whatever your personal feelings towards your former employee.

David Whincup, partner, head of London employment, Hammonds LLP