INTRODUCTION – THE LEGAL BACKGROUND
These guidelines are intended to help members of staff in the preparation of references for staff or students. They have been drawn up in the light of recent legal developments and so are intended to be of use both to senior staff, who are used to providing references, and to more junior staff.
It has been established in law in recent years that employers and educational institutions owe a duty of care in the preparation of a reference primarily to subject of the reference but also to the recipient of the reference and even in some cases to the public. Claims may be brought against an organisation or a referee by members of staff or students on the grounds of:
A reference must provide a fair and accurate account of the subject of the reference. Though it need not be full and comprehensive, it must not be misleading. Even if individual components of a reference are accurate, the overall impression could still be misleading.
• Defamation / Malicious Falsehood
References must not be written with the intent of damaging the subject’s reputation. They should not contain false statements, either by design or by negligence.
A reference should not discriminate on the grounds of race, sex, age, disability, religious belief or sexual orientation. Failure to provide a reference might also be seen as discriminatory, if any of the above are a factor.
• Contravention of the Data Protection Act 1998
Information which is deemed to be sensitive under the DPA (criminal convictions*, sexuality, ethnic origin, political views, state of health, religion) should not be disclosed without written permission from the subject of the reference.
* Where there is a criminal conviction or a disciplinary offence on the subject’s record, the referee may have a duty of care to advise other institutions or employers of this information. Because it is classed as sensitive information, the subject should provide written permission to disclose it. You should advise anyone in this position that if they refuse to allow the disclosure of the information the University would be unable to provide a reference.
Under the Rehabilitation of Offenders Act 1974 there is an obligation on the giver of a reference not to disclose a spent conviction in respect of the subject of the reference. However a number of professions are excluded from this Act (the medical, legal and accounting professions, for example). Further information on the Act is available from Registry and Planning Services or Human Resources (see section 6, below, for contact details).
FREQUENTLY ASKED QUESTIONS
1. WHAT SHOULD BE INCLUDED IN A REFERENCE?
The format of a reference is very much an individual matter and it is not the intention of these guidelines to restrict referees in writing references based on their judgement and experience. However, the following should normally be included:
(i) The referee’s position at the University and relationship to the person who is the subject of reference.
(ii) A disclaimer of liability (see below).
(iii) A statement that the reference is given in strict confidence (see 2, below).
Wherever possible referees should keep to the facts and should check facts about which they are unsure. Opinions given must fall clearly within the referee’s area of professional competence. Referees should not make, or appear to make, judgements which they are not professionally qualified to make, such as medical judgements. When drafting a reference, if you are unsure about whether or not to include a particular statement about the individual, leave it out. This does not mean that a negative reference cannot be given, but the facts should always be checked.
It has been established that a referee breaches a fundamental duty of care to an employee or student, if he/she discloses in a reference complaints of which the employee/student is unaware.
It may be relevant to disclose disciplinary offences (subject to the subject providing written permission). Referees should check whether the subject has a disciplinary record.
For students, disciplinary offences have been recorded on SITS since 2007/8 and the following information will be displayed on the Staff MAP page:
This student has a disciplinary record which it may be relevant to disclose. A password is required to view details of the offence(s) on SITS
A password may be required to view details of offences and this can be obtained from Authorised Discipline Officers, School Academic Offences Officers or the University Discipline Officers (Lesley Price ext 4656, email@example.com or Sarah Davies ext 4657, firstname.lastname@example.org) or the Secretary to the Disciplinary Board (Alison Birch ext 4653, email@example.com).
Pending disciplinary charges should not be mentioned.
It is recommended that a disclaimer is included in the reference, worded as follows:
“Whilst all reasonable efforts have been made to ensure the truth and accuracy of the statements made in this reference at the time of writing, neither the person giving the reference nor the University will be held responsible in any way for any errors, omissions or mis-statements contained in this reference”.
However this is unlikely to protect the institution or referee where they have been negligent in the drafting of the reference.
2. WHO WILL SEE THE REFERENCE?
References should state that the contents are given in strict confidence and must not be disclosed to the person who is the subject of the reference or to anyone else without the referee’s prior permission. All correspondence should be marked “private and confidential – for the attention of addressee only”.
However referees should be aware that, according to the Data Protection Act 1998, the kind of information contained in a student/staff reference qualifies as personal data, which means that a student/member of staff could have the right to see the reference. An employment tribunal or court may also make an order for the ‘discovery’ of a reference as evidence to support a case. Referees cannot rely on references remaining confidential even if the receivers of them intend that they should.
3. CAN I PROVIDE A SPOKEN REFERENCE?
Referees should give only written references if at all possible. If it is necessary to give an oral reference an accurate, contemporaneous written record should be made of what has been said.
4. DO I HAVE TO PROVIDE A REFERENCE?
There is no legal obligation to provide a reference. If the proposed referee feels that there is little positive he or she can say about the student or staff member, it may be best to decline politely. The refusal should be communicated in confidence to the person who was to have been the subject of the reference and to the person requesting the reference, preferably orally, speedily and with the minimum of explanation.
It is important to bear in mind that refusal to provide a reference could imply a negative opinion and might, in some circumstances, be construed as discriminatory.
Students and staff should be encouraged to seek prior authority from a proposed referee before giving their name to an organisation requiring a reference.
5. AM I LIABLE FOR CLAIMS AGAINST THE UNIVERSITY RELATING TO A REFERENCE I HAVE GIVEN?
As an employee of the University, members of staff are covered by the University’s professional indemnity insurance policy against claims arising from a reference. The policy covers references written in good faith, by a member of staff in the context of his/her employment with the University, but it does not cover references where the staff member is acting in a private capacity.
University headed notepaper should only be used when the reference is being prepared on behalf of the University.
6. WHO SHOULD I CONTACT FOR MORE ADVICE?
If you are in any doubt about any of these guidelines or about any other matter relating to the provision of a reference you should contact Jane Tyrrell in Human Resources, ext 4579, email firstname.lastname@example.org (regarding references for members of staff) or Lesley Price in Registry and Planning Services, ext 4656, email email@example.com (regarding references for students).
RPS/LAP 8 September 2009