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East Midlands Chamber News

Agree references to avoid litigation, firms urged

ELAS figures show that 90 per cent of small firms were afraid to act as a referee, with 20 per cent saying they refused regardless of whether the ex-employee was a good worker.Will Clayton, partner and employment specialist at Dent, Raven and Marsdens solicitors, agreed that there has been a move away from giving references in recent years.However, he points out that although employers are not legally obliged to provide a reference, they themselves will often make a job offer 'subject to references', meaning a "balance has to be struck".One way of doing this, Clayton believes, is to sit down with a departing employee and agree what will be included in the reference. Another way to avoid possible litigation is to stick to the facts, rather than express any unqualified opinions about an ex-employee."The trend these days is to give factual references stating the person's start date, leaving date, position and responsibilities, and - in some cases - their reason for leaving," he added.If a business does decide to provide a reference, what is said must be fair and accurate, must not mislead the recipient or be defamatory towards the subject.Where a negligent reference results in another business sustaining a loss, the firm that provided it can be held accountable. Likewise, if a job offer is withdrawn due to an unfair reference, the ex-employee can claim the loss of potential earnings.In some sectors, such as the financial services industry, there are guidelines as to what should be included in a reference. However, Clayton warns that following these is not an adequate defence if what is written is not fair and accurate.

  • For further information on reference writing and to view some sample letters visit www.businessballs.com/referencesletterssamples.htm.

(c) Business Hotline Publications Ltd 2005