One of the most common enquiries that we receive from our clients is how best to reply to a reference request, especially where the employee concerned has been troublesome. Our advice is always to remain objective throughout and avoid any subjectivity, if necessary confirm the employee's starting date, their leaving date and their last role with you.
Complications arise however where an employer and employee agree reference wording as part of a settlement agreement; this contractually binds an employer to respond to all reference requests in a particular manner and often there are additional clauses that preclude either party from being derogative about the other.
We were approached by a company a few days ago to advise on a legal claim they had received from a former employee who had left their company several years earlier; the claim was for a breach of contract on the part of the employer in relation to the provision of a reference.
The employee had left the company under a settlement agreement which contained agreed reference wording. The company had been approached for a reference from a prospective employer eighteen months after the employee had left and in accordance with the agreement issued the agreed wording.
The prospective employer subsequently telephoned requesting more information and a member of staff went into more detail of the reason why the employee left and why they would not be re-employed in the future.
As a result of this conversation, the prospective employer withdrew the offer of employment that they had made and advised the prospective employee of the reason. The employee was out of work at the time of applying for the role, and despite actively looking for another role remained out of work for a further eight months.
Because the employer had failed in their contractual obligations, the former employee issued a claim equal to eight months of the salary they would have received in the event that their offer of employment hadn't been withdrawn, this amounted to £12,450.00.
Where agreed reference wording exists, it's imperative that employers respond to requests in accordance with their agreement, whether in writing or on the telephone; there are no 'off the record' conversations ...