Whilst it is recognised that there is no legal obligation to provide a reference, as we routinely request such documents as part of our recruitment and selection action, it is only reasonable to reciprocate. However, this is a sensitive area and by agreeing to provide a reference the referee is automatically subject to certain legal obligations, including:
The Responsibilities of the Referee
a) to the employee/former employee
Case law (Spring v. Guardian Assurance ) has confirmed that the author of a reference may be liable for damages for negligence if reasonable care is not taken in the preparation of the reference and the employee/former employee suffers as a result. More recently case law (Cox v. Sun Alliance Life ) has confirmed that an employer also owes duty to an ex-employee to ensure that any reference provides an accurate and fair picture of the individual in question. You may refer to negative elements of performance, providing that such statements are based in fact and can be proven with objective evidence.
b) to the prospective employer
The information provided within the reference must be accurate and not raise any expectations which the employee in question cannot meet. Otherwise there is the possibility that the prospective employer could make a claim of damages if s/he were to suffer loss as a result of this misinformation. Therefore, the expectations of the new employer should not be raised unrealistically.
Right of Access
The Data Protection Act 1998, provides the subject of the reference the right to request from the recipient (the prospective employer) access to the information contained within the reference. Therefore, when producing a reference the author must consider that the subject of the reference may access the information provided within the reference. Whilst the prospective employer may take steps to protect the identity of the author of the reference and/or seek your approval to disclose your identity as part of this process, it would be extremely difficult to confirm that this will occur in every case.
Therefore, in the light of the above, the following action is required when producing a reference for a current/former employee of the University of Sheffield: