HR considerations
UK employment law and best practice
This template is designed to support the process, but the document should be used alongside the relevant HR procedure and applied to the circumstances of the individual case.
In the UK, you are not legally required to respond to a reference request from an ex-employee's new employer, unless there is a contractual obligation to do so. However, refusing to provide a reference could potentially result in a negative inference being drawn about the ex-employee, which could result in a claim for discrimination or breach of contract.
In addition, the ex-employee may have a right to access the reference under data protection laws, so you should ensure that any reference provided is accurate, truthful and not misleading. If you decide not to provide a reference, you should consider informing the ex-employee in writing, providing reasons for your decision.
If you respond to a reference request you must consider the following:
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Duty of Care: You have a duty of care to provide a reference that is accurate, truthful and not misleading. You should ensure that the information provided in the reference is fair, factual and objective.
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Data Protection: You are also required to comply with data protection laws when providing a reference. This means that you should obtain the consent of the ex-employee before providing any personal data to the new employer. You should also ensure that the reference does not include any sensitive personal data, such as medical information or details about their religion or ethnicity.
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Discrimination: You must ensure that the reference does not contain any discriminatory language or information. This includes avoiding references to age, gender, race, disability, sexual orientation, religion, or any other protected characteristic.
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Liability: You could be liable for any losses incurred by the new employer if you provide a reference that is inaccurate or misleading. This means that you should take care when providing a reference and ensure that the information is based on facts and not opinion.
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Equality Act: The Equality Act 2010 prohibits victimisation of an employee who has made a complaint under the Act. This includes complaints of discrimination, harassment or victimisation on grounds of any of the nine protected characteristics. You should ensure that the reference does not contain anything that could be interpreted as victimisation.