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
Under the Data Protection Act 2018, the subject of the reference is not generally entitled to access a confidential reference received as part of a selection process. However, there may be circumstances where it would be in the prospective employer's interest to disclose the content of a reference. Whilst the prospective employer must take steps to protect the identity of the author of the reference, they may seek your approval to disclose your identity as part of this process, however your anonymity cannot be guaranteed. Therefore, when producing a reference, you should consider that the subject of the reference may access the information provided within the reference.
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: