Triona Cody

The issue of employees providing references without authority has received a lot of media coverage in recent weeks. In this article, we explore some of the commonly asked questions in relation to providing references.

Do employers have to provide references?

In general, there is no legal requirement for employers in Ireland to provide a current or former employee with a reference when asked to do so. This includes providing regulatory references for those individuals appointed to perform controlled functions. However, the Central Bank expects regulated financial service providers/holding companies to make all reasonable efforts to obtain references from former employers or other relevant persons.

It is at the employer’s discretion to refuse to provide a reference unless there is a contractual obligation to do so. Employers must ensure that any refusal to provide a reference is not victimisation or discrimination.

If a contract of employment or a settlement agreement expressly states that a reference will be provided, failure by the employer to do so is a breach of contract and the employer may be liable for damages.

The provision of a reference may be an implied term in the employee’s contract of employment if there is a workplace custom and practice of providing references.

What should a reference include?

Most employers provide a basic and objective Statement of Employment setting out the employee’s job title and the dates of employment rather than a professional reference detailing an employee’s skills, ability and experience. A reference should be marked private and confidential to the recipient and include a disclaimer of liability.

An employer owes a duty of care to its current and former employees to provide a reference that is true, accurate and fair. Employers also owe a duty of care to a future employer who is relying on the reference provided. A reference should not be misleading. If a recipient acts on, or a current/former employee is the subject of, a misleading reference, this could lead to a potential cause of action against the employer/person who wrote the reference if the recipient or the employee suffer loss because of same.

What should a reference not include?

A reference should not include comments or information which may disadvantage the employee on any of the nine discriminatory grounds under equality legislation (gender, marital status, family status, age, disability, sexual orientation, race, religion, and membership of the Traveller community).

Subjective opinions, sensitive personal data (e.g. data revealing racial or ethnic origin), details of any absences relating to sickness or parental rights, untrue or irrelevant information should also not be included.

Legal risks in providing a reference?

An employer may be exposed to potential legal claims, legal costs, and reputational damage if it provides a reference without the consent of the employee to process their personal data, or which is untrue, inaccurate, unfair or misleading. Examples of potential legal claims include discrimination, victimisation, defamation, negligence, breach of contract, breach of trust and confidence, breach of data protection legislation, breach of the European Convention on Human Rights, or breach of the constitutional right to earn a livelihood.

To minimise legal risks, it is recommended employers have an Employment Reference Policy in place which sets out clear internal guidelines on handling reference requests and the information to be included in written references. Telephone or verbal references should be avoided, if possible, to minimise the risk of misinterpretation. Employers should not deviate from the information contained in a written reference.

Who should provide a reference?

It is recommended that all reference requests for current or former employees should be directed to HR for processing or another employee authorised by the employer to provide references. Where an employee provides a reference without authority this can still result in their employer being liable for the contents of the reference.

If an employee is asked to provide a reference in a personal capacity, the employee should make it clear that they are providing the reference in a personal (rather than a professional) capacity. A personal reference should not be written on the headed notepaper of the employer.

Conclusion

Employers should:

1. ensure the current or former employee consents to the provision of a reference to the named recipient;
2. implement an Employment Reference Policy;
3. comply with their obligations under GDPR and data protection legislation;
4. mark references as private and confidential to the named recipient;
5. include a disclaimer of liability;
6. keep a copy of all references provided on the employee’s personnel file; and
7. be consistent in their approach to references.

• Triona Cody is a partner in Kane Tuohy’s employment and litigation department.