Although many view it as a moral obligation, the law imposes no duty to respond to reference requests unless there is a contractual obligation under an employee’s contract of employment or as part of a student’s contract with a university to do so.
However, any refusal to provide a reference must be communicated carefully so as not to in effect imply a negative reference. Care must also be taken to ensure that any decision not to provide a reference cannot be challenged as discriminatory on the grounds of the subject’s sex, sexual orientation, religion, belief, race, gender reassignment, age or disability. Likewise, giving a bad reference for someone who has raised complaints about you or the institution may be an act of unlawful victimisation.
Responding to a reference request inevitably involves academics providing subjective views and character assessments of an individual; these may, if not worded carefully, give rise to claims in negligence, defamation and discrimination. Managers and academics should exercise a high degree of caution in delivering verbal references (for example, by telephone) because they give rise to the same legal risks as written references but present additional evidential problems in terms of what was said.
An institution will normally be liable for the consequences of a negligent, defamatory or discriminatory reference given by a member of its staff unless it can establish that the reference was provided outside the course of employment.
The courts have confirmed that the author of a reference owes a duty of care not only to the recipient of a reference but also to the person about whom it is written. This may result in the institution being liable for damages in negligence if loss is suffered as a result of a breach of that duty. Liability in such circumstances may arise as a result of carelessness in relation to matters of fact or in the formulation of opinion if an academic fails to exercise reasonable care in its preparation.
If a reference contains a false or unsubstantiated statement that damages the reputation of an employee or student, he or she may be able to claim damages for defamation. The referee may rely on the defences of justification, fair comment and privilege, and you may take comfort from the fact that a finding of liability for defamation is unlikely where you are able to justify and support any comments made and where the reference is given without malice.
A reference will generally include personal data, and an institution should have regard to the provisions of the Data Protection Act 1998. The Act affords a specific exemption for confidential job references, and the subject of the reference does not have the right to gain access to a confidential reference from the institution that has provided it. However, this exemption does not apply to the recipient institution, which may, following a data subject access request, be obliged to disclose a copy of the reference. Therefore, even if a reference is marked “confidential”, referees should always assume that the subject will have a right to obtain a copy.
In responding to a reference request, you should be conscious of the risks involved and strive to strike a balance between the duty owed to employees and students on the one hand and the duty owed to prospective employers on the other. A practical means of achieving such a balance is to limit the content of references to factual details (for example, an individual’s employment dates, information concerning academic results, research undertaken and any papers published), and although there may be questions of enforceability, accompany references with an appropriate disclaimer.