References
The duty to the ex-employee is one of reasonable care in producing a reference that is both factually accurate and fair. Employers should be aware that any reference sent to an ex-employee's new can be obtained by that ex-employee, if the ex-employee makes a data access request.
For example, suppose a reference said that the ex-employee was good at general typing but lacking at other computer skills and poor at working with spreadsheets. This could be true. However, in fact the ex-employee had joined her previous employer having told them she had no experience other than typing but was willing to be trained. Despite her requests, no training was given and she was left to struggle. This would mean the reference was unfair and would be in breach of the employer's duty.
Employers should also beware if there has been an allegation of misconduct and the employee then tenders his or her resignation in response. Firstly, the employee may still make a claim in a tribunal or court. Secondly, the employer cannot comment on the allegation in the reference unless it has been the subject of a reasonable investigation. This would mean a full and complete investigation, with the required meetings with the ex-employee, as is necessary in order for a dismissal due to misconduct to occur. If the employee has resigned part way through the process no mention should be made in the reference and you would be better not to give a reference until the process has been completed.
If the employee has left and there has been some dispute which has been compromised, it often the case that the compromise agreement will provide for a standard reference or will have a confidentiality clause. In either of these cases the employer should be wary of making any reference to the matters raised in dispute, as the employer may then be in breach of the compromise agreement, which could be overturned. In addition, if the dispute arose out of allegations of discrimination or involved whistle-blowing then the employer may be open to an allegation of victimisation. On the other hand, the employer should not give a glowing reference where the employee has acted badly or you have serious concerns about their capability for the work.
Employers need to take care when giving references. If they breach the duties imposed on them they could be sued by an ex-employee who fails to secure new employment for loss of that employment or for defamation or for breach of the compromise agreement.