Guidelines for writing references

Confidentiality of references and the Data Protection Act

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. Further, under the Data Protection Act it is not possible to guarantee that a reference will remain confidential, even if it is marked as such.

Under the Data Protection Act, the referee may stipulate that a reference shall be confidential, and the referee need not show it to the individual about whom it is written. However, once the reference is received (by a potential employer, for example), the recipient must show it to the individual about whom it is written if it appears to the recipient proper to do so, having balanced the rights of the referee, any other person mentioned in the reference, and the individual about whom the reference is written. Considerations include any duty of confidentiality to the referee, any steps taken to obtain the referee’s consent, and whether there has been an express refusal of consent.

There is detailed guidance on this issue on the Information Commissioner's website. It is likely that the data subject will be able to access their reference in most circumstances.

Duty of care

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.

Supply of a reference

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.

Contents of the reference

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.

Sensitive personal data

Referees must have the explicit consent of the data subject to disclose sensitive personal data - 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.

Departmental organisation

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.

Legal action

Should allegations be made that a reference is negligent or defamatory, the matter should be referred immediately to the Secretary's Office.