You have received a reference request from a former employee, who was dismissed from your company for poor performance. You note the role he is applying for is at a more senior level to that he held with you. However, as it’s against the law to give a bad reference, you feel you must tell his new employer he was a model employee.
Not quite. It is an oft-repeated urban myth that there is a law precluding a “bad” reference. However proceed with caution nonetheless. Employment law does give some protection to employees seeking a reference from a former employer and expectedly so, as their future job prospects can be in the balance.
What is allowed is a factual reference, so, for example, many organisations choose to confirm only start and leave dates and job titles, thus avoiding any accusation of untruth or unfairness. However should you wish to add more detail than this, such as issuing what you feel is a fair warning to your former employee’s prospective new boss, then it must be factual. If your employee, (Mr X), went happily through his employment never being advised his performance was not up to par and left blissfully unaware of the sighs of relief that accompanied him, it will hardly be deemed fair or reasonable to condemn him in writing now. If however, Mr X was subject to a performance improvement process where it was clear to him what needed to improve and how he could try to do so, then it may be deemed reasonable to state in a reference, if asked, that Mr X’s reason for leaving was dismissal due to capability.
-Annabel Innes (HRML)