Take care when providing employment references – new ACAS guidance

ACAS, the conciliation service, have recently provided some guidance regarding the provision of employment references.

The advice points out that employers are not generally obliged to provide a reference for a current or former employee but that if they do so it must be fair, accurate and not misleading. If they provide an inaccurate or misleading reference and the employee suffers loss, for example if a job offer is withdrawn as a result of a negligent reference, then the employee can bring a claim for compensation against the provider of the reference.

ACAS point out that prospective employers may ask specific questions in reference requests such as enquiring about an employee’s level of absence. Such information, where it relates to sickness absences, is likely to be regarded as special category data under the GDPR and the Data Protection Act 2018 meaning that organisations must take special care processing the information in order to avoid breaching the new rules on data protection. It is arguable that providers of references could claim that they should provide this information as it is necessary to carry out their obligations under employment law (one of the exceptions allowed under the GDPR for processing special category data). However, as the provision of a reference is normally a voluntary act for employers this is open to challenge and would therefore seem an unnecessary risk. We would advise employers to take advice before providing such information in response to a reference request.

The ACAS guidance also states that a job applicant’s managers and former colleagues may be happy to provide more detailed references than the employer itself. ACAS go on to state that employers should have a policy setting out how they deal with references. Our advice to employer clients is normally to have a policy that discourages managers and colleagues to provide personal references as this creates the risk of a negligent reference being provided that the employer could be liable for. It is normally better for the employer to have a designated person or department that handles all reference request (e.g. the HR department) so that a consistent approach is maintained.

The ACAS guidance can be found here. If you have any queries regarding this or any other employment law related topics then please contact us on either 01483 411 533 or enquiries@employ.law and one of our Employment Law Solicitors will be delighted to assist you.