Members of staff should always consider writing open references, which are shown to the individual about whom they are written before they are sent. It reduces the risk of litigation against the referee and the University by the person about whom the reference is written, and fulfils the expectation of transparency enshrined in data protection legislation.
However, under the Data Protection Act 2018 individuals have no right of access to confidential references written about them. It is conceivable that there may be circumstances where the author of a reference does not wish the subject of the reference to see what they have written. If this is the case then the reference needs to be marked as 'Strictly confidential'. It is expected that this will not apply in the majority of instances as referees should be prepared to allow the subject of the reference to view what they have written, and will need to be able to defend any fact or opinion provided.
Individuals have the right to request access to references written about them from both the organisation who recieved it (i.e. where they are applying to) and the organisation who sent it (where the referee is employed). However, if the reference has been marked as confidential then they do not have a legal right to access it.
The House of Lords has ruled that the referee owes a duty of care to the person about whom it is written, and may be liable in damages to that person if loss is caused through negligence: in other words if the reference was carelessly given. In principle liability could arise both to the subject of the reference if the reference was carelessly unfavourable, and to the recipient of the reference if the reference was carelessly favourable.
If the reference was given by a member of staff in the course of his or her employment, the University might also be liable.
Staff and students should be told to ask permission before giving the name of a member of staff as a referee.
There is no legal obligation to provide a reference but a refusal to supply a reference should only be made with good reason. Where such a refusal is indicated to a potential employer or to another institution, the refusal should be carefully worded so as not to imply that any reference supplied would be negative. Alternatively, it could be explained directly to the subject why a reference will not be provided. This can help to avoid any confusion or potential ill feeling.
Referees should read the subject’s file carefully at the time they are writing the reference and should not rely on memory. Checks should be made to ensure that there are no outstanding disciplinary proceedings or investigations against the subject of the reference. In some cases the reference once generated will be used several times. This is acceptable but care needs to be taken to make sure that the most up-to-date information is included. All references should be dated.
The referee should state clearly the parameters within which the reference is given, for example how long the subject has been known to the referee and the areas in which the referee is qualified to comment. The referee should carefully distinguish between statements of fact (for example, the marks obtained in last year’s exam) and statements of opinion (for example predictions of likely degree class). Opinions should only be given on matters within the referee's professional competence.
There may be instances where it is appropriate to make use of a disclaimer in order to limit any liabilities relating to reliance on the content of a reference. For instance:
"Whilst the above information is given in confidence and good faith, no responsibility or liability can be accepted by the University or any of its employees for any omissions or inconsistencies in the information or for any loss or damage that may result from reliance being placed on it. The information is given in confidence and only for the purposes for which it was requested and should not be disclosed to a third party."
Referees may need the explicit consent of the data subject to disclose special category data, though there may be other justifications for including it (seek advice from the Secretary's Office if this presents a problem) - for references, this is most likely to include information relating to health or sickness (including sickness absence). Referees should also be aware of the implications of section 60 of the Equality Act (PDF, 325 kb) for employers during the recruitment process and the limited circumstances in which such information can be requested. Please contact the Equality and Diversity team for any further advice in this area.
Copies of references should be kept in a central location, normally in the file of the member of staff or student in the School/Faculty/Division.
Should allegations be made that a reference is negligent or defamatory, the matter should be referred immediately to the Secretary's Office.
