What are the duties of an employer if it supplies a reference?
An employer owes a duty of care to the intended recipient of the reference to ensure that it is true, accurate and fair, and does not give a misleading impression. It could be sued by the recipient if it gives a negligent or careless reference which subsequently results in financial loss to the recipient. The employer also owes a duty to the ex-employee to take reasonable care in the preparation of the reference. If, for example, the employee fails to secure a new job because of an inaccurate or misleading reference, he or she will be able to sue his or her ex-employer for damages.
The employer must also comply with its data protection duties by ensuring that the reference request is genuine and that the ex-employee wishes the reference to be provided. It must be careful not to reveal information about the ex-employee's health, such as reasons for sickness absence, (unless it has his or her explicit consent to do so) as this falls within the special categories of data under the General Data Protection Regulation (2016/679 EU).