Writing references is a slippery slope, says Peter Coulson

The letter in last week's MA entitled "Legal implications of honesty" shows what problems can arise when you are asked to give a reference for a departing or departed employee.

The subject has even exercised the minds of the House of Lords in recent years, and I cannot conceal the fact that this is a very difficult area of the law, perhaps graphically shown by what happened to the letter-writer when he tried to answer the questions honestly.

But let's be clear: there is no legal obligation to give a reference at all, as long as you spell this out right from the start for all employees. You can just stay dumb - as long as you do it for all your employees as a matter of policy.

However, the Government and other organisations consider this to be unreasonable and that you should at least respond to requests for a reference in some way - this can be as little as giving just the dates of employment, any holiday or sick leave taken and other factual information.

But what happens if you are asked about disciplinary procedures? You are caught between the devil and the deep blue sea, because you are equally vulnerable if you fail to reveal an essential item of information which could affect subsequent employment. The new employer might complain that in responding without giving the full facts you caused him a loss by employing someone untrustworthy he would not otherwise have hired.

In the case cited last week, the actions of the new employer were very bad. It appears that a standard form was sent out asking specific questions, to which the former employer replied truthfully. None of that was unknown to the employee; it was factually based and therefore was not defamatory, as long as other elements were fairly included. An unfair reference can often mean "slanting" the facts to make the person appear worse than they should. The questions asked afterwards assumed attitudes which were not present, and the subsequent comments to the employee were quite unwarranted.

The first thing is that all references should be marked "strictly confidential". This means that they should not be shown to the employee or any third party unless your consent has been obtained. Most employers will abide by this, knowing that if the employee takes up the post, they will be able to access that information from the new employer anyway.

What the new employer did was very unprofessional in a number of ways, but you cannot guard against this. You must therefore confine yourself to stating the facts of the employment and what happened in it, and if you do venture into an opinion on the merits of the employee, make it clear that this is a personal view. Stick to what you know, and do not venture too far. If you are asked about their suitability for a new job, do not answer unless you have clear details of what that job involves.

Some references have landed the writers in court for defamation. Former employees have also been aggrieved about certain facts being included concerning their behaviour: they seem to think you should conceal anything bad and only say positive things. But as I have said, that can be a problem. You must tell the truth, and that is not defamatory, as long as it is put in context.

The general principle is not to write anything you would not want the employee to see, bearing in mind that they may gain access to it in due course. Keep strong or emotive language out of the document, concentrating on the person's work and abilities.

This is a slippery slope and you do not want to end up in front of a tribunal or in court.