Postemployment Even after employees have left your employment, whether it is to go to another employer, to retire or because of dismissal or redundancy you as an employer still have certain responsibilities towards your former employee. As an ex-employer there are various aspects of a continuing responsibility, including giving references and ‘garden leave’.
References The legal position There is no legal obligation on an employer to provide an individual with a reference, unless there is a specific contractual term obliging the employer to do so or if you are employed within a specific industry, e.g. financial services. Sometimes, however, an employer’s refusal to supply a reference may constitute discrimination so all such situations should be carefully considered. Any reference given must be truthful and factually accurate. Therefore, employers/authors of references should ensure that any reference provided is carefully drafted. An inaccurate or defamatory employment reference can be the subject of an action for negligence or claim for defamation against an employer and/or the individual author at an employment tribunal or county court. You should remember that 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, only that he or she has lost a ‘reasonable chance’ of employment and thereby sustained a loss. You should note that the recipient of the reference may be able to sue the individual referee and/or the employer for damages if the information contained in the reference is inaccurate or misleading.
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