Other legal issues for references

Unfair dismissal

• Constructive dismissal. If an employer discloses complaints in a reference that the subject is unaware of or if the employer negligently misstates information, this can amount to a fundamental breach of the duty of trust and confidence. This would enable the employee to resign and claim unfair (constructive) dismissal

• Capability. An employer should not be tempted, out of kindness or a desire to encourage an early departure, to give an employee an unduly good reference if they are dismissed. This could undermine the employer's reasons for dismissal if the case came before a Tribunal. It could also lead to problems if another employer employs the employee on the basis of the inaccurate reference

Unlawful discrimination

You should not make any distinction between a reference you write for an employee when they are an employee and one you write after their employment has ended.

The House of Lords held that employment tribunals have jurisdiction, under the Equality Act 2010, to consider a complaint of discrimination that relates only to acts that are alleged to have taken place after the complainant's employment has ended. This is on the basis that the relationship between employee and employer does not necessarily come to an end when the employment ends. A discrimination claim can, therefore, be considered, provided there is a substantive connection between the discriminatory conduct and the employment relationship.

There is, therefore, no difference in the provision of a reference the day before the employment ends and the day after.

If an employee has been involved in making a discrimination claim under the Equality Act, you cannot refuse to give them a reference; this is victimisation.

Disciplinary action/Formal Review

If the University has taken disciplinary action against the subject of a reference or if their performance is under formal review, please seek advice from your HR Partner, manager of the Joint Faculties Office (or Faculty Director of Administration for Henley Business School) and IMPS as to whether this should be mentioned in the reference.

Challenge over a reference

If you are challenged over a reference you have supplied, refer the matter to HR (for employees) or the Director of Student Services (for students) and the University's Insurance Officer.

Equal opportunities

If an equal opportunities issue arises in respect to any reference please contact your HR partner for further guidance.