Can an employer limit its liability by including a disclaimer in a reference?

Many employers aim to limit liability for references by adding a disclaimer stating that they cannot accept any liability for errors or omissions in the content of the reference. While there is no guarantee that a disclaimer will be effective, there is no disadvantage in including one.

A disclaimer will be effective only if it is reasonable, taking into account the content of the disclaimer and the circumstances in which it is made. If the employer has, or would be expected to have, direct knowledge of the information provided, it will be unlikely to be able to rely on a disclaimer if the reference contains information that is not true, accurate and fair.

The employer providing the reference has a duty of care to both the new employer and the employee. It is unlikely that the employer would be able to rely on a disclaimer in relation to any liability towards the employee, as he or she is not the intended recipient of the reference.

Employers should take steps to ensure that only information that is true, accurate and fair is provided in a reference, rather than relying on the enforceability of a disclaimer.