Handling tricky reference requests for current or ex-employees

Source: Practice Index by Susi O’Brien in Employment Law, HR – Human Resources

There are many reasons why an employment relationship could falter – including misconduct, poor performance, personality clashes, absence, or just the way circumstances fall. Whichever reason applies, trying to respond to a reference request for an employee or ex-employee in that situation can be awkward. In this blog, I’m going to talk through some common questions about this.

Can I throw the reference request in the bin and not respond at all?

This wouldn’t be advisable for a GP practice. We work in a sector with strong safeguarding ethics and rules. The CQC expects practices to check references as part of safer recruitment processes, so refusing to respond to requests isn’t particularly professional. That’s especially the case if the request has come from a fellow healthcare-related employer. And, hypothetically, if you damaged someone’s future career by refusing to provide a reference on request, they *might* have grounds for legal action against the practice.

Do I need to get the employee’s consent before I respond?

When giving out a reference, you’re sharing someone’s personal data with an external party, so according to the GDPR, you need a legal justification for this. One potential justification for sharing personal data in these circumstances would be the consent of the employee in question. That’s why many employers these days will insist on getting the individual to agree to a reference being provided before it’s sent. But this does involve some extra time and admin.

Fortunately, in a heavily regulated sector like healthcare, there’s usually a strong argument that data sharing in response to reference requests is necessary based on the practice’s legitimate interests to support wider quality and safeguarding systems within the NHS and beyond. This means that from a GDPR angle, at least there’s rarely any need to get specific consent from individual employees. Just ensure that something mentioning this is written into your employee data privacy notice and you should be fine in the unlikely event that the Information Commissioner’s Office (ICO) comes knocking.

However, what if the reference request is fake? What if the individual has already decided to withdraw from that recruitment process and so the reference isn’t needed? A quick phone call or email to the individual will put your mind at rest on these matters, and is probably a good idea if the request has come through unexpectedly.

Can I say they were awful?

This depends on what, if any, evidence you have to back up those negative opinions.

If you write a reference for an employee that results in them not getting a job, they’re going to be pretty miffed. If they’re *really* miffed, they might try and take legal action against you. If you’ve caused someone to be out of work or unable to progress in their career, and you can’t properly evidence the reasons why you said whatever you said in that reference, you’re likely to be in trouble if the case goes to court or tribunal.

But on the other hand, if you have a whole collection of written records and warnings relating to the management of this employee’s poor performance or misconduct and what you write in the reference merely describes that, then this should be justifiable. The individual will probably still be miffed, but it’s unlikely that they’ll be able to do much about it.

Can I say I wouldn’t employ them again?

Similarly to the above, this depends on your reasons and evidence for doing so. If you think you’d struggle to justify saying ‘no, I wouldn’t re-employ’ if challenged, but don’t feel comfortable with saying ‘yes, I would re-employ’, then my advice is to leave that question blank.

Can I say they were absolutely wonderful (even if it’s not true), just to get rid of them?

You have a professional and legal obligation to write truthful references. Be balanced, and note the employee’s good qualities, but always stick to the facts!

What should I write regarding their absence record?

Under the Equality Act 2010, it’s unlawful for a prospective employer to ask questions relating to a candidate’s health prior to a job offer (unless this is for the purpose of monitoring statistics or providing adjustments to recruitment processes). This, and more general concerns about disability discrimination, means that it’s less common for reference requests to include questions about sickness absence records these days.

Therefore, if the reference doesn’t ask anything about the employee’s absence record, don’t mention it, full stop. If the request does include a question about absence, then proceed carefully. Absence data is related to health so is classed as special category information under the GDPR and thus is subject to additional rules. I’d recommend either skipping that question or asking the individual for explicit consent to include details about their previous absence before sending your response.

Can I just provide their name, dates and job titles and nothing else when providing a reference?

Yes, you can, and this is very common in today’s job market. It’s sometimes referred to as a ‘tombstone reference’ for guessable reasons. If you want to follow suit, best practice is to be consistent about it. Don’t provide long references for some staff and tombstone references for others without good reason. Plus, given the safeguarding responsibilities we share as healthcare providers, it’s best to include factual information relating to any formal disciplinary/performance sanctions which are still live when the reference is provided.

What if the request relates to an ex-employee who previously left via a settlement agreement?

A settlement agreement usually includes set wording for future references relating to this employee. You should always use this.

Do I have to let the employee see the reference if they want to?

Employment references are exempt from subject access requests under the GDPR, so the short answer to this is no. The employee can ask to see it, but you don’t have to grant this access if you don’t want to.

However, in most cases, you might as well let them see it in my opinion. Sometimes employees get very angry about what terrible things they imagine you’ve written, and the situation calms down a lot when they see the evidence-based reality.

Do you have any general tips for dealing with tricky reference requests?

My biggest tip is to ensure that you have solid records relating to any individual performance, conduct, or absence concerns. If you’ve been fairly and proactively managing issues as they arise, then the employee will be aware of them, and you’ll easily be able to evidence this if they challenge you on the reference’s content.

The biggest no-no to avoid is ignoring concerns relating to an employee, but then pouring them all into a reference when one is later requested. This would be completely unfair, and somewhat cowardly of any employer. If you have constructive feedback to give, then the employee should be the one to hear it first – not their prospective future employer.


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