The following advice applies to those providing references (internal and external) for present and past employees and students and to those receiving references. This guidance has been revised to reflect the requirements of the Data Protection Act 1998 (see para 4 below).
1. The Legal Position
- 1.1 A reference can be the subject of an action for negligence as well as for defamation.
- 1.2 The provider of a reference has a duty of care in the preparation of a reference. Thus employees can sue employers for damages for failure to exercise reasonable care.
- 1.3 Recent case law has established that, where there is negligence, an employee does not have to prove actual loss of an appointment, but only that he or she has lost a reasonable chance of employment and thereby sustained loss.
- 1.4 It may also be that a duty of care is owed to the receipt of the reference, therefore the latter might be in a position to sue for negligence.
- 1.5 The Data Protection Act 1998 applies to references.
2. Duty To Provide A Reference?
Given the above, it might seem safer to opt out of providing references. However, there is an implied duty to provide a reference (as well as a moral obligation) upon tutors and Heads of Departments towards students and towards members of staff, whose careers they are in a position to influence.
Departmental policy on references should be made clear to students, i.e. can they assume that their adviser/tutor will automatically provide a reference if his/her name is cited in an application or should the advisor/tutor first be approached for permission?
If you are asked to give an unsolicited reference (for a person who has not, to your knowledge, cited your name as a referee), it is advisable to limit your information to the facts.
If you receive a request from a potential employer but are unable or unwilling to give a reference, communicate your refusal carefully, without, in effect, implying a negative reference.
All references are given in confidence, but in some circumstances, there may be an obligation to disclose :-
- if a copy is requested by the subject of the reference (Data Protection Act)
- if required to by a Court or enforcement order
- or if required in defending a claim for damages.
4. The Data Protection Act
The Act states that a confidential reference, for the purposes of education, training and employment, is exempt from subject access.
- Giving references You may mark a reference 'Confidential' in order to prevent you having to disclose it to the subject.
- Receiving references: If you receive a reference, whether or not it is marked "Confidential", you may be obliged to disclose its contents (if so asked). However the Act implies that you may legitimately refuse to disclose a reference if the referee does not consent to this and it is not possible to keep the referee's identity confidential - the identity of the referee is also personal data - by blanking out names etc.
It is expected that this "third person" defence will attract challenge and care should therefore be taken when giving a reference as the recipient of that reference might be required to disclose its contents to the subject.
The University is developing good practice on the Data Protection Act on behalf of the HE sector and further guidance on disclosure of references will be available at http://www.dpa.lancs.ac.uk/.
5. Telephone or Verbal References
These should also be handled with a similar degree of care (see below); steps should be taken to confirm the identity of the person requesting the reference. If notes are kept of the conversation, these may be required to be disclosed. You should state that the reference is given "without legal responsibility" and you reserve the right not to answer certain questions.
6. Offers of Employment
It is University policy not to make offers of employment conditional upon obtaining satisfactory references. This can lead to a claim by the subject of the reference if the offer is subsequently withdrawn.
The procedure, therefore, is to obtain references prior to interview or, where this is not possible, to defer a decision until all relevant information is available.
All references should contain the following disclaimer :-
"The University accepts no liability, in negligence or otherwise, for the statements or information contained in this reference although they are given in good faith".
There is no guarantee, however, that a disclaimer will not be challenged in court, therefore due care must be exercised in preparing a reference.
If you are challenged over a reference you have given, do not admit liability. Consult HR (staff references) or the Student Registry (student references).
8. Providing a Reference
There are two principal aims of a reference :-
- to confirm facts
- to provide opinions - as to the candidate's suitability.
The two should be clearly differentiated and you should try not to confuse fact and opinion, e.g. "on her performance to date, I would be surprised if X did not get a first class degree" is clearly an opinion; "she will get a first class degree" suggests that the issue is beyond doubt.
8.1 References which provide factual information are difficult to challenge. Ensure the facts are correct and state within what parameters the reference is given. "If in doubt, leave it out".
8.2 When you are asked to express an opinion about a person's suitability, you should ensure that your comments can be defended and justified on reasonable grounds. This means that your comments are based on an honest belief and are not malicious or perverse. You should try to demonstrate that you are qualified to give such opinions. Do not make statements which you are not qualified to make. For example, "I consider X to be well suited to the post for which he/she has applied and am happy to support his/her application" is better than "X will be a success in the post of .........".
For this reason, you should take particular care if you are asked to provide a reference for a student who is not known to you. Do not give an opinion which is not your own just because the person who knew the student is no longer available to act as a referee. Try to quote someone who has knowledge of the candidate, giving the source of the quote.
If you are asked to express an opinion on an issue about which you have limited knowledge, e.g. honesty and integrity, you may have to say, for example, "I know of nothing that would lead me to question X's honesty".
Avoid using ambiguous or "coded" language, e.g. "X has studied here for three years, during which time he has done his work entirely to his own satisfaction".
8.3 Care should be taken to avoid acts of unlawful discrimination.
8.4 The referee has a duty of care both to the subject of the reference and to the recipient. The reference must not be misleading.
8.5 Include a disclaimer clause but remember that this does not discharge you from the duty of care.
8.6 Mark all correspondence "private and confidential - for the attention of addressee/committee/panel only" and state that the reference is only given for the benefit of the addressee(s).
8.8 Avoid telephone or verbal references; provide a written reference if time allows.
8.9 Keep (and file) copies of any references provided, written and verbal.
The legislation is intended to ensure that fair and accurate references are provided and that referees act responsibly. If you have any queries about the provision of references, please contact either the Personnel Department or the Student Registry, for information and advice.
Updated August 2005