Do schools have to provide references?
Generally there is no legal obligation on an
employer to provide a reference for an employee
or ex-employee and you are entitled to refuse to
provide one. However, unless you have a policy
of not providing a reference to anyone, this is
rarely a sensible option.
Can we be sued for something that we say in
If you do provide a reference, you owe two
duties: the first of these is owed to both the
individual and the prospective employer and
requires you to take reasonable care to ensure
the information contained in the reference is
true, accurate and fair. The other is owed to the
individual alone and that requires you not to
make defamatory statements about them.
This means that you must not compile the
reference maliciously or negligently, and thereby
give an impression, which is either too negative
or misleadingly positive. So if the individual was
a poor performer, or regularly turned up for work
late and you have evidence of this, you can say
so. Similarly, if the employee was sacked for
gross misconduct, if you provide a reason for
dismissal you must not invent another reason,
such as redundancy in a misguided attempt
to help the employee to get another job or to
obtain state benefits.
If you do give an inaccurate reference, your
former employee could bring a claim for
damages in negligence for lost earnings if he
can show that it was your reference (as opposed
to, say, their own lack of skills or poor interview
performance) which costs him the job. Also, the
prospective employer can claim against you for
its wasted recruitment costs and damages, if it
can show that without your misleadingly positive
reference they would not have hired your former
Is it better to stick with factual information
about the employee rather than provide an
opinion about their suitability for the role?
With these risks in mind, many employers
prefer to provide brief references, which say
very little beyond setting out the employee’s
job title, role, salary and dates of employment
etc. Although the prospective employer can
check this information against that provided
by the candidate, references such as these are
fairly useless, as they do not tell the prospective
employer what the candidate is really like. Often
a prospective employer in receipt of a noncommittal
reference will attempt to obtain
more information by speaking to the candidate’s
former head teacher or direct manager. Any
information given verbally – even if it is stated to
be “off the record” is subject to the same duties.
This is often misunderstood. It is not possible
to have a conversation “off the record” or on
a “without prejudice” basis unless there is a
legal dispute between your school and the
organisation provided with the reference.
Badging a conversation in this way will not
therefore mean that it cannot be referred to at
a later date. It is perhaps better not to speculate
about a former employees suitability for a
job, particularly if it is different to the one you
employed them to do.
Who should give a reference?
It is worthwhile developing a policy for dealing
with references, including identifying who has
authority to provide a reference on the school’s
behalf. This will help you to respond to requests
consistently and should avoid allegations by
disgruntled former employees that you have
acted unfairly or unlawfully.
For example, if you normally provide brief,
factual references, but on one occasion choose
to provide detailed information about the
candidate’s lamentable performance, the key
question will be why you have done so. If there
is a suspicion that you are doing so because of
the candidate’s sex, race, age (or other protected
characteristic), or because they made a previous
discrimination complaint then you are likely to
face a discrimination or victimisation claim.
Our members of staff are sometimes asked
to provide a personal reference. Does this
expose us to risk?
Your policy should set out whether staff
members can provide personal references for
other members of staff and set guidelines if
you do. If you do permit these, the individual
providing the reference must make it clear
that the reference is as personal one and is
not written for or on behalf of the school. The
individual providing the reference should use
their own paper or email address and not
anything linked to the school.
Is it sensible to mark references for the
addressee only and insist that they are not
passed on to the employee?
The information contained in a reference will
constitute personal data (and perhaps sensitive
data) so you must take steps to make sure that
it is properly addressed and marked private and
However, it is also worth remembering that
even if you expressly state that your reference is
given in confidence and must not be disclosed to
anyone else (including your former employee),
they may still be able to see the reference you
have written. You are not obliged to give a copy
of the reference to your former employee, but
they can ask the recipient for a copy of it under
the Data Protection Act and ultimately you have
no control over whether a copy is provided. Plus,
if the individual brings a claim, a court or tribunal
will order that the reference is disclosed. It is
therefore safer to assume that the subject will
ultimately get to see any reference you write.
What information should be contained in a
We usually advise employers to provide only
brief, factual details and include a statement
that its policy is to only provide basic details and
that this should not be taken to be disparaging
of the employee in any way.
However, schools are subject to additional duties.
Schools must disclose the fact that the employee
has been subject to capability procedures and
reference any safeguarding concerns they have
and action taken in respect of these (even if no
action was taken).
Will a disclaimer protect our school against
A disclaimer may assist with defending claims
made by the recipient of the reference against
the school but only to the extent that it is
reasonable. In view of the importance of the
reference to the employee and the fact that
the information being provided is within the
employer’s knowledge, a court may not be
sympathetic to an employer who seeks to hide
behind a disclaimer.
Public sector employers should also bear in mind
that their public duties to act with honesty and
integrity cannot be circumvented by using a
disclaimer in a reference.
We have agreed to provide a reference as
part of an exit package to a member of staff.
Can we change the content?
If you agree a reference as part of a settlement
agreement, you must not deviate from this
unless you discover new evidence that indicates
that the information contained in the reference
is no longer correct. Most settlement agreements
usually include wording which allows the giver
of the reference to make changes in these
circumstances or to refuse to provide a reference.
You will normally be expected to notify the
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