Employers are wary of giving references; fears of legal liability have eroded the practice of giving a reference to any employee and instead employees are now considered lucky to receive a standard Statement of Employment if anything.
This synopsis sets out general tips and guidelines in connection with the drafting of references to assist employers in navigating through this legal minefield!
When preparing a reference consultation with Supervisors, Managers and other Personnel who had daily contact with the employee is advisable.
Also, it is important to examine the employee's personnel file. Employees ought to be aware of their generally performance rating and should also be informed of any issues effecting their performance such as absenteeism or bad time keeping.
The principal aim of the reference should be to confirm facts and to provide opinions. Opinions should be clearly stated as opinions and ought to be based on facts known to the employer. Employers giving references should take reasonable steps to ensure that any references given are accurate.
1. Check the employee's personnel file.
2. Speak to daily Supervisors.
3. Note the difference between fact and opinion.
4. Verify facts i.e. qualifications, dates of commencement, attendance record.
5. Substantiate opinion.
Employers should never include any "sensitive personal information" in a reference. Sensitive data includes information pertaining to an individual's race, colour, sexual orientation, religion, political opinions, membership of a trade union, criminal record and includes medical information in relation to the employee. In the event that an employee was absent from work on sick leave for a lengthy period, an employer may include the fact that the employee was absent for twelve weeks on sick leave, however, the employer may not disclose the illness preventing the employee from returning to work.
Where possible, employers should avoid giving oral references. The Law applies equally to oral references, however, where a reference is given over the phone, an employer has little control over what is interpreted from his or her statements. Where a telephone reference is given the following guidelines, at the very least, should be adhered to:-
- Suggest to the caller that you will call them back shortly in order to give yourself time to examine the file of the employee, or if appropriate, have a discussion with the employee's direct Supervisor;
- Confine your comments to accurate facts;
- Do not make statements that you would not be willing to make in writing;
- Make a note of the time and date of giving the reference, the name and job title of the caller and record a brief summary of the facts given.
This information should then be faxed or e-mailed to the caller to confirm the conversation and should also be placed on your previous employee?s personnel file.
Employers are advised to have an Employee Reference Policy in place. The Policy should address the following:-
A. The legal background.
B. Data Protection Principles i.e. access requests and sensitive personal data.
C. Aims of reference.
D. Examples of differences between fact and opinion.
E. Oral references.
F. Contacting Referees.
The Policy should be circulated throughout the Company so that anyone who may be asked to give a reference or may be asked to help prepare a reference is fully briefed of the legal implications with regards to input.
The important point is to ensure that you are confident that anything which appears in a reference is justifiable and can be backed up by accurate facts. Employers should be aware that an employee can easily seek a copy of their reference from you or any prospective employer by making an access request under section 4 of the Data Protection Acts 1988-2004.
Therefore, anything included in a reference can potentially be accessed by the employee. The key is to keep references short, to the point and accurate.
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