Drafting references can be a legal minefield for employers. This has not been helped by recent confusion over whether ex-employees are protected against victimisation if they receive a negative assessment.
Generally there is no legal obligation on an employer to provide a reference for an ex-employee. This is subject to regulatory requirements in certain sectors such as financial services and where the parties have entered into an agreement (such as a compromise agreement) under which they have contractually agreed a reference.
An employer's policy on whether or not to give a reference needs to be consistent: a decision to provide a reference to some but not all ex-employees could be discriminatory under the Equality Act 2010 (the Act) if this is linked to protected characteristics.
Where an employer does provide a reference it has a duty of care to the ex-employee and must take reasonable care in the preparation of the reference which must be true, accurate and fair and not give a misleading impression.
An employer also has a duty to the recipient of a reference. While the reference does not have to be comprehensive, it must not be misleading through omission.
An employer may be liable for negligent misstatement where its reference gives an inaccurate impression and in extreme cases it may also be liable in the tort of deceit.
The Equality Act 2010 (the Act) provides protection against detrimental treatment (victimisation) because a person has brought proceedings or given evidence in proceedings under the Act or made an allegation of breach of the Act.
Before the Act came into force, the House of Lords ruled, in Rhys-Harper v Relaxation Group plc  IRLR 484 that employees were protected against post employment victimisation where an employer's refusal to provide a reference arose out of and was closely connected to the previous employment relationship.
However, section 108 of the Act specifically excludes claims of victimisation where a relationship between the parties has come to an end. It is unclear whether Parliament intended to exclude victimisation claims post employment or whether this was merely an oversight when the legislation was drafted.
In the recent case of Ono v Akwiku the Employment Appeal Tribunal (EAT) ruled that it is possible to bring a claim for victimisation under the Act after an employee's employment has terminated.
However this ruling is in direct conflict with the slightly earlier case of Rowstock Ltd & another v Jessemey, which was heard in March 2013. The EAT ruled that Mr Rowstock was not entitled to pursue a claim for victimisation, after he received a negative reference from his former employer subsequent to bringing a claim for age discrimination. The EAT's reasoning was that the wording of section 108 was clear and it could not read words into the legislation to make it mean the opposite of what it said!
The Claimant in Ono was a domestic servant who brought a claim against her previous employers for victimisation which took place after she had left employment. The EAT in this case decided that Jessemey had been wrongly decided and that a sensible interpretation of the Act would be to enable a claim for victimisation to be brought.
If the Jessemey case is correct then UK law does not properly implement European law which does protect against post employment victimisation. For the moment we have two conflicting authorities from the EAT which is unhelpful. However, the Jessemey case is to be heard by the Court of Appeal which will hopefully clarify the position. Ultimately we may need Parliament to legislate to ensure the position is clear. However, employers would be well advised not to refuse to give a reference just because the employee has made allegations, brought proceedings (or given evidence in connection with such proceedings) under the Act. Employers need to have a policy in place for giving (or not giving) references which should be applied consistently.