Employers are not usually required to give a departing employee a reference. If employers do provide a reference, they have a duty to the ex-employee and to the recipient of the reference to ensure that the reference is true, accurate and fair, and does not give a misleading impression.
Employers should also ensure that there is not an undue disparity between the reference and any other written statements relating to the employee in question (e.g. reasons for dismissal or an employee appraisal) as this could put the employer in a difficult position in the event, for instance, of an unfair dismissal claim.
Requesting a reference involves processing personal data under the General Data Protection Regulation (GDPR). Employers must ensure that they have a legal basis for processing data and, in this context, the most likely basis is that the employee has consented to process the data. This is because the employee is likely to have a genuine choice about whether or not to consent to data processing for employment reference purposes.
Reference requests and references should be marked ‘confidential’ and ‘addressee only’.
Employers should ensure that they do not ask questions relating to health or disability until a job offer has been made.