Writing a reference
The referee has a duty of care to disclose only that information which is relevant to the post for which the existing or former member of staff has applied. It is essential that the prospective employer provides a copy of the job description and person specification and any other relevant information.
The two principle aims of a reference are:
to confirm facts (e.g. to confirm the accuracy of statements made in an application)
to provide an opinion as to the suitability based on an assessment of performance in post
When drafting a reference, the underpinning rules are that:
it is fair and accurate,
it is not misleading,
the factual basis on which each comment is made is believed to be true after reasonable investigation.
Content of a reference
As a general guide, the referee might include:
the dates on which the individual’s employment with the University began and ended,
the individual’s job title,
a short description of the member of staff’s key job duties and level of responsibility,
if the individual held responsibility for staff, money, equipment, computer operations etc (where relevant)
any jobs that the member of staff held within the University prior to the job that he or she held at the date of termination (or the current job), and for how long he or she performed these roles,
where the individual has left the University’s employment, the reason for the termination, i.e. whether he or she resigned or the University instigated the termination, and if the latter, whether this was the result of dismissal, redundancy, retirement or the expiry of a fixed term contract.
Special care needs to be taken when considering the inclusion of the following information in a reference:
Statements in a reference should not refer to complaints or difficulties that have not been raised with the employee concerned. It is however acceptable to detail factual concerns or problems where these have been evidenced, as long as the person is aware of these concerns because they have been previously discussed with them. If a disciplinary warning is current, it may be referred to if it is relevant to the post for which the member of staff has applied.
However a pending investigation where no disciplinary decision has been taken should not be referred to in writing. There may be exceptions to this, for example, if the alleged disciplinary offence is one of gross misconduct and could affect the employee’s suitability for the job.
Under Section 61 of the Equality Act, information about a member of staff’s health (e.g. sick days absence) can only be provided once a job offer has been made. Information concerning an individual’s physical or mental health is also ‘sensitive personal data’ under the Data Protection legislation and should not be disclosed unless the individual has expressly consented to the disclosure of this information.
The referee should discuss the response to any question about health with the member of staff to ensure the response is accurate, factual and creates an overall fair impression.
A referee is not required to disclose a ‘spent’ or current conviction of an existing or former member of staff and it is likely that a prospective employer will carry out their own checks. However, where certain posts are exempt from the Rehabilitation of Offenders Act (1974), a referee may be asked to respond to a direct question and an incorrect response could amount to negligence. Therefore before responding, the written consent of the individual should be sought.
Nothing which is, or could be construed to be, discriminatory in terms of race, gender, disability, sexual orientation, age, gender reassignment, pregnancy and maternity and religion or belief may be included in a reference.
Particular care is required when writing, or refusing to provide, a reference for an individual who has previously made any allegation of unlawful discrimination against the University or any member of staff. This is to ensure that there can be no claim of victimisation i.e. that the individual was treated less favourably with regards to the content or refusal of a reference as a result of having made a complaint. Similarly, a reference must not be discriminatory in its language or implication.
No referee should provide a favourable reference for a member of staff dismissed on the grounds of unsatisfactory performance. Should the dismissal be challenged, the favourable reference may be irreconcilable with the dismissal reason.
Omitting information on a dismissal from the reference information may render the University liable to breach of their duty not to be unfair or misleading to the recipient