After someone has left a job

Sometimes your responsibilities as an employer continue after someone has stopped working for you and you must still not discriminate unlawfully against them.

This section looks at how you can make sure you are not discriminating unlawfully in selecting people for redundancy, and in particular how this applies to references.

The most likely area where you will have contact with someone who used to work for you is if they (or their prospective new employer) ask you to give them a reference.

It does not matter how long ago the person worked for you, as long as the worker could show that any unlawful discrimination arises out of and is closely connected to the previous employment relationship.

If someone is still working for you when they ask for a reference in order to change jobs, this is still part of their employment, and you must not unlawfully discriminate against them, just as in every other work situation.

Deciding whether or not to give a reference

In general, there is no legal requirement for you to provide someone with a reference, provided your policy on providing references (or not providing them) is applied without unlawfully discriminating against anyone. However, if someone’s employment contract says that references will be provided then you must provide one.

Be aware that in sectors where workers are subject to special rules (such as finance) and cannot get a job without a reference, the courts have said that there is an implied term in the contract that employers will provide one.

If you do give references, they must not include comments about the person’s characteristic (or in the case of disability, comments about something connected with the person’s disability) that might be unlawfully discriminatory.

The same rules apply to telephone and other verbal references.

Good practice tips on giving references

If you express an opinion in a reference (as opposed to stating a fact) make sure it is not unlawfully discriminatory.

Don’t supply sensitive data, for example, on sickness absence, unless permission to do this has been given in writing explicitly by the worker. However, be aware that simply giving information about someone’s total number of days' absence in a specific period does not breach the Data Protection Act 1998 or the General Data Protection Regulations 2018.

You should not refer to absence which is not sickness absence if it is related to a protected characteristic and telling the person’s new employer about it would breach their confidentiality – for example, maternity leave, disability leave or gender reassignment leave, all of which this guide suggests you should record separately from sickness absence.

A worker can give you explicit permission to disclose information if they wish you to – for example, they may want their new employer to know the reason for a period of absence. But you must not do this without permission.

Giving a bad reference if someone has a poor work record

If, regardless of someone’s protected characteristics, the reference would have been bad, then you are of course entitled to do this and you should resist attempts to make you change it.

However, if you have given someone an undeserved bad reference in circumstances which make this unlawful discrimination, they are entitled to ask you to change what you have said. If you do not do this, they may be able to bring an Employment Tribunal case against you.

Confidentiality

Be aware that the person you are writing about may read what you have written, and make sure it is factually correct and not unlawfully discriminatory. The worker may see it because the person's new employer gives them a copy.

Even if you have provided a reference 'in confidence', the new employer may decide that they should give it to the worker to comply with data protection rules. Usually, they will contact you to ask whether you object to the reference being disclosed, but even if you do object, they can still give your reference to the worker if they believe the worker's interest in seeing what has been written outweighs your interest in having it treated confidentially.

If someone does not get a job, or has a job offer withdrawn, and they believe that this is because you provided a discriminatory reference, they can ask to see a copy using the questions procedure

Apart from when you are asked for a reference for a former worker, other situations where you have a continuing relationship with them include if former workers receive any continuing benefits from you. These must not be withheld from someone if this would be unlawful discrimination.

If someone believes that they are being discriminated against after they have stopped working for you, they can take the same steps to have things put right as if they were still employed.

They may contact you and ask you to put the situation right. If it cannot be sorted out informally, then they can ask you to deal with their complaint using your usual grievance procedure. They can also take a case to an Employment Tribunal.

Reasonable adjustments

Your duty to make reasonable adjustments for a disabled worker also continues after the person has stopped working for you. The duty exists only if the ex-worker was a disabled person when they worked for you.

What is reasonable in this situation may be different from what would be reasonable for someone who is still working.