Legal issues

8th December 2000 at 00:00
THE TES has thudded onto the mat again, full of jobs. And jobs mean references.

Most references are easy to write. Occasionally some require metaphysical subtlety.

The most cryptic I ever received, when I was a head, read: "Dear Mr Lowe, re your request for a reference for Mr X. I cannot disappoint a colleague. Yours etc."

Revealing as this was in its way, it cannot be justified either on moral or legal grounds.

There is actually no legal duty to provide a reference for an employee, but it would be unusual for a good employer not to do so.

However, a person who agrees to provide a reference has a duty to take reasonable care in compiling it and obtaining the

relevant information.

An employer must also take care to avoid any suggestion of discrimination on the grounds of sex, race or disability. An adverse comment that appeared to be linked to a disability could be grounds for a claim.

References must be sbstantially accurate. Any opinions offered must be based on facts. This means that the employer must ensure that no unfair overall impression is created, even when the component details are correct.

And no details of sub-standard performance should be included if the employee has not received counselling on the standard of their work.

As an employee you do not have an automatic right to see any reference sent by your current employer. But, strangely, the prospective employer can give you a copy, unless the sender has made it confidential. Moreover, if you get the job you can demand to see any reference kept on your file, even the confidential ones.

It is much wiser, therefore, for an employer to let you know beforehand the drift of the reference. It may mean the death of the more entertaining references, but as an applicant you should be reassured!

Chris Lowe is legal consultant to the Secondary Heads Association

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