In brief
Generally speaking when considering providing a reference, for an ex employee the best approach is to provide factual information only and not to get drawn into verbal or written dialogue over and above this information. It is important to state in the factual reference, that the company have a policy of providing factual information only.
Case law
The 2015 case Pnaiser v NHS England and Coventry City Council, provided clarity on the responsibilities of employers when giving and receiving references. This particular case had a reference agreed as part of a settlement agreement between the relevant parties. The employer offered the role to the claimant, subject to satisfactory references. They later spoke with the recruiter over the phone and cruically elaborated on the prospective employees reference. During this conversation they discussed sickness absences, related to the claimant's disability and furthermore commented that they would be unlikely to fulfil the proposed role. The prospective employer withdrew the offer to the claimant. The tribunal initially found in favour of the respondent however the claimant appealed and at the EAT made findings of unlawful discrimination against both the Council and NHS England.
Conclusion
Sometimes it is better to say nothing than something that could give rise to risk and this case is a good example of the risks of providing a negative reference. There is after all no duty to provide a reference. for an employee, but if you do provide one, there is a duty of care to ensure that the reference is true, accurate and fair. Failure to do so can result in costly claims from both ex employee or new employer.
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