by Anne Lyne March-10-2016 in Employment Law
As the labour market has become more buoyant employers may find themselves faced with exiting employees seeking references. Most employers are happy to give some support to an employee who has worked well, but what about an employee that has not?
Generally speaking, employers are not legally obliged to provide a reference. However, any employer who decides to provide a reference owes a duty of care to an existing employee to ensure that reasonable care is taken in preparing the reference and that it must be true, fair and accurate. This was highlighted in a recent Irish Labour Court recommendation under the Industrial Relations Acts. In HSE v. A Worker (AD1248), an employee was awarded €10,000 for the distress and a recommendation that the employer engage the employee in a permanent position where the HSE sought to rely on a reference from a previous employer which the employee disputed,
Factors which employers should consider when deciding whether to provide a reference include previous custom and practice in their organisation and whether an employee can be reasonably expected to enter into that particular class of employment without a reference. If these factors are relevant, it will be very difficult for an employer to refuse to provide a reference as this could cause HR/IR issues.
In compiling a reference employers must also be mindful of data protection legislation, which provides that employees have a right to see and be provided with a copy of any reference created. The position is slightly different for “expressions of opinion” given on the understanding that the reference/opinion would be treated as confidential. In such cases the employee may not be entitled to a copy. However, the Data Protection Commissioner has confirmed that there is a high threshold to be met and that simply marking the reference as “confidential” may not be sufficient. On that basis, it is preferable to expressly state the requirement of confidentiality in the text of the reference itself.
Employers should avoid any reference to “sensitive personal data” such as records of sickness absence. Care should also be taken not to include any information in a reference which could be said to be connected to the nine grounds of discrimination under equality legislation (gender, marital, family, age, sexual orientation, race, religion, disability and membership of the traveller community).
In order to minimise risk, it is best practice for an employer to have a clear and consistent reference policy which applies to all employees. All employees and management should be made aware of the policy.
A reference policy should ideally appoint an authorised person to compile and furnish references and to serve as a follow up point of contact for a prospective employer. If possible, references should not be given over the phone. In the case of follow-up calls, no further information should be provided other than that already contained in the reference.
The policy itself should set out the format of references and what information they should contain. In this regard, employers might consider providing only a basic statement of employment, which provides the bare minimum of factual information. This might include information as to the position which the employee held and the dates in which they were employed. Finally, it is also advisable to maintain a record of all references provided, ensuring that the record meets the obligations regarding retention of documents under the data protection legislation.
A version of this article appeared in the Sunday Business Post on Sunday March 6 2016
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About the Author
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Anne Lyne
Anne is a partner and leads the Employment Law team at Hayes solicitors advising on the full range of employment related issues.
Anne understands that if an employment related issue arises that responsiveness and practical assistance are key for clients. Anne and the team are available for clients to ensure that matters are addressed promptly.