All personal information you provide is subject to the General Data Protection Regulation (GDPR) and the Data Protection Act 2018. Very briefly, that means you must only process the information fairly, transparently and only if certain lawful reasons apply. As the reference will contain personal information about the ex-employee, you should only send it to the new employer based on one of the following reasons:
Normally, you don't have an obligation to disclose the reference to the former employee. However, they could see the reference if they send you a 'subject access request'. However, you may not have to provide it if the reference was marked as 'confidential'.
For more information about your data protection obligations, see thesection.
An inaccurate or defamatory employment reference can be the subject of an action for negligence or defamation against the employer and/or the individual author, and therefore the author of a reference owes a 'duty of care' to the person about whom it is written. Where the author of a reference is proven to have acted negligently, the subject of the reference does not have to prove 'actual loss' of employment, but only that they have lost a 'reasonable chance' of employment and thereby sustained loss. A duty of care is also owed to the recipient of the reference, who may be able to sue the individual referee and the employer for damages if the information contained in the reference is inaccurate or misleading. In other words, there are risks if you give undue praise or undue criticism.
A current or recent employee may also have a claim for discrimination or victimisation, if the refusal to provide a reference is based on discriminatory grounds.
There are two principal reasons for an employer requesting a reference for a prospective employee:
In responding to a reference request, the facts about an individual's employment history and any opinion of their ability to undertake a new role should not be confused. If an opinion is offered regarding an individual's abilities, the reasoning for such a view should be made clear. If challenged, the author would need to provide evidence to support this view.
In writing a reference, the author should always indicate how long they have known the individual, and in what capacity, and ensure that the facts stated about an individual are correct. The author should not include any facts of which they're unsure - if in doubt, leave it out.
If asked to express an opinion on an issue about which the author cannot make an unequivocal statement, for example, regarding an individual's honesty and integrity, it is appropriate to use a phrase such as 'I know of nothing that would lead me to question X's honesty.'
As a general rule, only comments on an individual's performance or ability that have already been the subject of discussion with them should be included.
References should be marked 'confidential' to the addressee.
A reference should contain the following disclaimer in its final paragraph:
'In accordance with our normal practice this reference is given in good faith and in confidence, without legal liability on the part of the author or the company.'
You must not refer to spent criminal convictions in references.
Although requests for telephone or verbal references are frequently received, such requests should be declined other than in exceptional circumstances, since information given in this way may be misinterpreted in its transmission to the interview panel. If, exceptionally, a verbal reference is given, steps should be taken to verify the identity of the enquirer, and notes should be kept of the conversation. Where a verbal reference is given on behalf of an employer, the person giving the reference should not make any statements that they would not be willing to make in writing.
It is generally inadvisable to provide unsolicited references addressed 'to whom it may concern'. If exceptionally, such references are provided, they should be limited to factual statements such as dates of employment, sickness record, capacity in which employed and reason for leaving, if known.