Guidelines for Staff providing references
The following is intended as a guide for staff who are approached to provide references for students, colleagues and former staff.
1. Legal Principles Applying to References
From time to time, members of staff are asked to provide references for students, colleagues and former staff ("the subject").
Referees owe a duty of care in the preparation of a reference, both to the subject and to the recipient of the reference. Any breach of this duty could give rise to a claim for damages for negligence and/or misrepresentation. In addition, referees may be liable for a defamatory reference.
A recent case reinforced the need for referees to be careful about what they say. The court held that, as well as being factually accurate, a reference must not give a misleading impression overall. This may mean putting certain facts into context so that the reference as a whole is true, accurate and fair.
The University will normally be liable for the consequences of a negligent/defamatory reference given by a member of staff, unless it can establish that the reference was given outside the course of employment. Disclaimers of liability may help, but only reasonable exclusions of liability for negligent acts or omissions carried out in the course of business will stand up in court.
There is no general duty to provide a reference for staff or students and if referees feel that they cannot discharge the duty to both the subject and the recipient, they should politely decline to give a reference, bearing in mind the note on discrimination below.
The Data Protection Act 1998 by implication gives the subject of a confidential reference the right to ask the recipient of the reference for a copy, where the reference is held as a manual record or on computer. This means that, for the first time, the person about whom a reference is written has a legal right to see that reference, although disclosure will depend on whether the reference was given in confidence or may reveal information about a third party. Notwithstanding this, the Information Commissioner's Office has advised in its draft Code of Practice for employers (but also likely to be relevant in relation to students) that, as a matter of policy, all references should be open, whether provided or received by the University. Previously, the only time a reference might have become available was as a result of legal proceedings. The Act provides an exemption from this right of access where the University provides the reference. Please also see the University's Data Protection Policy.
Referees should also note that, whilst the subject's consent to the disclosing of personal information about him/her can usually be inferred from the request for a reference, this cannot extend to 'sensitive information' such as information about the subject's racial or ethnic origin, physical or mental health, sexual life, trade union membership, political opinions or religious beliefs, or criminal record. Referees should not include any such information in a reference without first obtaining the subject's express consent in writing. This means that the subject should be made aware of the sensitive information which is being disclosed, the purposes of the disclosure and the recipient of the information. If consent is not obtained the referee should refuse to provide the reference if that information is material.
Internal references and disclosure
Staff are often required to provide references for colleagues for purposes internal to the University, such as promotion. Sometimes, these references are provided on the assumption that they will be held in confidence and not revealed to the subject, in order to promote honesty and candour in the reference, and to maintain good working relations between the subject and the referee. Where a request for disclosure has been made by the subject of the reference, the University adopts the following policy in relation to internal references for which the referee has requested confidentiality:
- if the reference can be rendered anonymous, that reference will be disclosed to the subject;
- where anonymity is not possible, the referee's consent to the disclosure will be sought and, if provided, the reference will be disclosed;
- where such consent has been withheld, the University will honour the duty of confidentiality.
It is important to note that current case law does not given any guidance on this issue and referees should be aware that, in the event of a court decision or enforcement action by the Information Commissioner, this policy regarding internal references may be modified.
Referees should take particular care when writing or refusing to give a reference for a subject who has previously made allegations of race, sex or disability discrimination against the University or a member of staff. This could lead to a claim of victimisation i.e. that the subject has been treated less favourably as a result of having made the complaint. Similarly a reference must not be discriminatory in its language or by implication.
2. Practical Points to Consider When Drafting a Reference
When giving references, the following points should be borne in mind to help minimise the risk of giving rise to a legal liability on the part of the person providing the reference and/or the University:
2.1 In all cases, because of the duty of care to both the subject and the recipient, it is essential to check the accuracy of the factual information provided in the reference and to ensure that such facts are complete. Referees should also ensure that the reference does not give a misleading impression overall, even if the statements in it are factually correct. For example, this may mean not including information about minor disciplinary offences unless these have been such as to give rise to concerns about the subject's character. Facts may have to be put into context.
2.2 As well as including facts, references often include opinions, which must be clearly differentiated. Referees should confine themselves to facts if it is possible to give a fair account of the subject by doing so. Opinions may be given on subjects (which is frequently the principal object of the exercise) but those opinions given must clearly fall within the referee's of professional competence e.g. academic judgment. Referees should not make, or appear to make, judgments which they are not professionally qualified to make (such as medical judgments). Any opinions offered in the reference must be reasonable, based on fact and capable of being substantiated. A reasonable opinion is one that any sensible person, with due appreciation of the facts, would hold. Care should also be exercised when referring to the subject's character or integrity. Such opinions should be expressed as: "I have always found X to be ..." "Based on my experience of X as [Head of Department] I have found him/her to be ... "
2.3 Staff: Subject to the guidelines on minor disciplinary offences in 2.1 above, disciplinary offences should be referred to only if the charges have been substantiated. Where a member of staff resigns before a disciplinary hearing takes place, unfavourable comments should be confined to matters into which the referee/University has made reasonable investigation and reasonably believe to be true.
Students: Subject to the guidelines on minor disciplinary offences in 2.1 above, disciplinary offences should be referred to only if the charges have been substantiated. There may be occasions when a reference is requested during the course of disciplinary proceedings. If the reference cannot be delayed until the proceedings have been concluded, no reference should be made to those proceedings. If the charges are subsequently substantiated, the letter of reference may need to be supplemented with this information and the student informed accordingly.
2.4 All references should be marked 'Private and confidential - for addressee (or named committee or panel as the case may be) only'. However, referees should note the impact of the Data Protection Act 1998 (see above), which make it more likely that a subject will gain access to a copy of a reference given about him/her.
2.5 References should be given in writing if at all possible. If it is necessary to give an oral reference, there should be an accurate contemporaneous written record made of what was said and should be followed up by a written reference by fax or post stating that the written version is definitive. Where a telephone reference is unavoidable, the referee should take reasonable steps to verify the identity of the person at the other end.
2.6 "To whom it may concern" references should be avoided as the University does not in these circumstances know the identity of the person to whom it owes a duty of care. In addition, there may be an inadvertent disclosure of information to a third party in breach of the Data Protection Act.
2.7 Some employers or grant awarding bodies will use a written proforma with boxes to tick. Although it is easy to tick boxes, references provided in this way carry every bit as much legal force as a written reference. The normal duty of care continues to apply. If the referees are not happy with the choices provided they should say so and, if necessary, provide a backup, covering note in order to put the responses into context to ensure that the reference is fair.
2.8 Subjects should be asked to seek prior (general or specific) authority before giving a referee's name to any organisation which may require a reference. Members of staff might wish to make it clear to subjects that this is the only basis on which they are prepared to give references. (This is preferable to the referee being put on the spot to provide a reference, particularly where the referee has had little or no recent contact with the subject.)
2.9 It is important that departments have established procedures under which references are provided and stored so that proper records are kept. This ensures a consistency of approach in the provision of multiple references for members of staff and students and that, should legal action be taken, the evidence on which the reference was based can be produced.
2.10 A reference should include the following disclaimer: "Whilst all reasonable efforts have been made to ensure the truth and accuracy of the statements made in this reference, neither the referee nor the University will be held responsible for any errors, omissions or misstatements contained in the reference".
2.11 If individuals and departments take common sense precautions and remember that they have a duty of care in the provision of references, they should not normally encounter any difficulty. If, however, you are challenged or receive a notice of action, you should not admit liability as this may invalidate the University's insurance cover. The matter should be notified to the Pro Vice-Chancellor (Student and Staff Services) immediately so that appropriate action can be taken by the University in consultation with its legal advisers.
2.12 For the avoidance of doubt, any reference supplied in a personal capacity must be provided from the referee's home address and the University's postal and e-mail addresses must not be used. While the referee may state the capacity in which he or she has knowledge of the subject of the reference, the reference must state that it is made in the referee's personal capacity.
2.13 Staff: References in respect of financial status for use in mortgage applications etc may only be provided by the Finance Director.
2.14 References should be up-dated appropriately to discharge the duty of care to both recipient and subject and to comply with the Data Protection Act.
2.15 If issues arise which may affect the university's position in law, please consult thePro Vice-Chancellor (Student and Staff Services).
Dr Jonathan Davies, Data Protection & Copyright Manager, Information Services, Hugh Owen Library, Penglais, Aberystwyth, Ceredigion, SY23 3DZ
Tel: 01970 628592 Fax: 01970 622404 Email: firstname.lastname@example.org